Even when you win a Second Amendment case decisively in the Ninth Circuit Court of Appeals, you may lose in court in the end, having won a battle, but not the war. Which is annoying as all get out, but we’ll take our wins as best we can, even as the war continues (see above). As you will recall, in the case of Teter v. Lopez, the three-judge appeals court panel gave us a decisive and masterfully ... that declared butterfly knives to be arms protected by the Second Amendment and voiding Hawaii’s ban. Hawaii appealed this case to the full Ninth Circuit, en banc, which vacated the panel’s ruling, as they typically do in 2A cases.

You may also recall that the Hawaii legislature then repealed bans on not just butterfly knives, but also switchblades a.... Afterwards the state argued that the en banc appeal was therefore moot, since the law was no longer on the books. That would lock in the vacating of the panel’s decision, effectively removing the case as precedent in the Ninth Circuit.

Although plaintiff’s counsel, our good friend Alan Beck, argued that the case wasn’t moot, because there were still outstanding issues in the case, those arguments didn’t carry the day in a split decision. So, the net result is that Hawaii’s bans on manufacture, sale, transfer, possession, and transportation went away, for now at least, but from a big picture standpoint it was a slightly hollow victory.

By that I mean, had the panel’s decision in Teter been allowed to stand, that precedent could have been used more effectively to challenge other knife bans in the Ninth Circuit, including Washington’s ban on Spring Blade Knives (automatics or switchblades), as well as in other circuits. It also means that there’s nothing stopping Hawaii from reintroducing knife bans, should it want to (and, apparently it does; see above).

Judge Lawrence VanDyke, a staunch defender of the Second Amendment who has taken the Ninth to task before on this issue, penned a strident dissent from the majority that took the Ninth Circuit to task, again, for their continued efforts to oppose the Supreme Court’s recent pro-Second Amendment jurisprudence. VanDyke’s dissent focused on the fact that with the automatic vacatur of the Court of Appeals panel opinion, states like Hawaii can effectively invalidate any pro-Second Amendment ruling by getting en banc review, automatically resulting in the panel opinion being vacated. Then they voluntarily amend the law to moot the matter before it is heard en banc. This essentially allows a state to erase any pro-Second Amendment decisions that come out of the Court of Appeals panels. Such an abuse of the judicial system is a real threat in states like Hawaii and California, which have a governor and legislature willing to do anything to infringe on our 2A rights.

You can read the entire decision at www.KnifeRights.org/teetermoot. Judge VanDyke’s dissent starts on page 19; Judge Collins’ dissent starts on page 34.

I have been bombarded with questions as to how this affects our lawsuit challenging California’s ban on switchblade (automatic) knives with a blade 2-inches and greater on Second Amendment grounds, also in the Ninth Circuit. The answer is simple; it doesn’t. The reason is that we had little expectation of prevailing in the Ninth Circuit absent extraordinary circumstances. This lawsuit will either result in California removing its ban legislatively if we get a pro-2A panel decision, as happened in Hawaii, or we have a decision that can be appealed eventually to the U.S. Supreme Court with either a circuit split from our, or some others’, pro-2A decision or because numerous courts have ignored the plaint text of the Bruen decision.

In the meantime that latter issue is still before SCOTUS in the Snope v. Brown case that is been once again listed for Conference on Friday (a decision now postponed three times, some case are relisted over 20 times). Knife Rights filed an Amicus Curiae (Friend of the Court) brief in support of that Petition for Writ of Certiorari which is still alive and has not been denied. A decision in that case would be dispositive in many of our lawsuits, although if accepted it may come too late for the California case until the next level of appeal.

Stay tuned for the next installment of Knife Rights' Unconstitutional Switchblade Bans Chronicles.