Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
Last Wednesday, the State of Hawaii filed a petition requesting en banc review (by an 11-judge panel) of a 9th Circuit three-judge panel’s unanimous ruling in Teter v. Lopez, 76 F.4th 938 (9th Cir. 2023). The Teter ruling declared Hawaii’s ban on butterfly knives unconstitutional, and the three-judge panel’s correct application of the Supreme Court’s ruling in Bruen has implications that extend well beyond just butterfly knives and well beyond Hawaii.
The case so far is a critical win for our Second Amendment rights, but Hawaii now seeks to reverse it through review by an 11-judge en banc panel.
States facing Second Amendment lawsuits challenging various gun laws have worked very hard to twist and misapply the Bruen methodology, and some courts have gone along with the distortions of Bruen that states are advocating. The Teter case so far sets the record straight, applies Bruen faithfully, and 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 file with the en banc panel and will fight to preserve this ruling beyond that if necessary.
The Teter decision confirmed that the text of the Second Amendment applies to all instruments that constitute bearable arms, and that all laws prohibiting law-abiding citizens from acquiring arms are presumptively unconstitutional. More importantly, the Teter decision correctly laid out how Bruen’s analogical reasoning test should be applied in any Second Amendment case challenging any gun law. The three-judge panel unanimously (and correctly) rejected the argument that laws mainly governing the manner of carrying arms can justify modern complete possession bans because “how” a law addresses a societal concern is part of the Bruen test to determine whether a historical law can be used to justify a modern law.
A historical law regulating the manner of carry differs entirely from a modern law banning possession.
If upheld, the Teter approach will become the mandatory standard for evaluating Second Amendment challenges in the nine states and three territories covered by the 9th Circuit Court of Appeals.
So, this is a colossal ruling favorable for the right to keep and bear arms. Other Circuit Courts nationwide will be hard-pressed to reject the approach, meaning this case, like the Duncan 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 adopted a proper application of the approach mandated by the Supreme Court’s precedent in Bruen. The panel’s critical point in its decision was backed up with a direct pinpoint citation to the Bruen or Heller decisions.
Nonetheless, Hawaii 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 9th 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.)
In its request, Hawaii claims that if the panel’s 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 suggesting that granting en banc review is a “matter of life and death.”
Hawaii’s request for en banc review will now be circulated to all active 9th Circuit judges and any senior judge who has chosen to participate. The entire circuit court bench may then vote to order the opposing party to respond to the petition and brief as to whether the court should rehear the case en banc. 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. So, time is short.
If most active judges vote in favor of rehearing or rehearing en banc, the Chief Judge will order that the case be heard by an 11-judge en banc panel. If no majority is reached, the three-judge panel ruling becomes final. Currently, there are 28 active judges on the circuit. The current ideological split is closely divided, with 15 Democratic appointees and 13 Republican appointees. So, well-prepared amicus briefs could help persuade one or two judges who are on the fence to vote against en banc review. 2ALC is actively involved now and will stay involved later if necessary.