In a recent legal maneuver, a group of progressive Attorneys General from 14 states and the District of Columbia have presented an amicus brief to the Ninth Circuit, backing the State of Hawaii's assertion that states hold the right to prohibit widely used arms. The context emerged from an August 7, 2023 decision by a Ninth Circuit three-judge panel, which recognized that pocket knives, specifically "butterfly knives," are constitutionally protected under the Second Amendment, therefore negating Hawaii's stance on their prohibition.
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The State of Hawaii, however, didn't agree with this verdict. On September 20, 2023, they challenged the ruling in the case of Teter v Lopez, expressing that the panel misinterpreted the law. Historically, the Ninth Circuit hasn’t shown much favor towards the Second Amendment. By September 22, the plaintiffs, Teter and Grell, were instructed to give their response within three weeks.
Supporting Hawaii’s appeal on October 2, 2023, was the collective of progressive state Attorneys General and the District of Columbia. Their primary arguments revolve around:
1. The ambiguity in the Heller and Bruen judgments regarding the coverage of all bearable arms under the Second Amendment.
2. The distinctions between common possession and actual use of arms for self-defense.
3. The responsibility of those opposing the law to demonstrate that a weapon is frequently used for self-defense.
These arguments seem to contradict the core of the Heller, Caetano, and Bruen decisions, which generally indicate that all bearable arms are safeguarded by the Second Amendment.
The progressive group also controversially alluded to the potential threat of backpack nuclear weapons as bearable arms, thus arguing that such items could be constitutionally protected, even though in reality, these are heavily regulated given their extreme threat level.
Critics argue that the steps taken by Hawaii and the group of progressive Attorneys General may risk eroding the Second Amendment. Their contention is that if specific everyday items can be arbitrarily labeled as "uncommon" or "dangerous," this could pave the way for a slippery slope where more and more items get banned, undermining the Second Amendment.
The critics further emphasize that owning a tool for self-defense inherently means using it for such a purpose, even if one hasn’t physically defended oneself with it. They caution against the dangerous precedent of allowing bans on specific items without proving their uncommon usage.
Prior to the Supreme Court’s Bruen verdict, some were open to recognizing items like semi-automatic rifles and magazines as commonly used. But post-Bruen, the scope has shifted, forcing detractors to seek new strategies to challenge the essence of the Second Amendment.
In essence, the arguments brought forth by the progressive Attorneys General are seen by many as a creative, yet unbacked, effort to sideline the Second Amendment.
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