[00:00:32] Speaker 05:
United States Court of Appeals for the Ninth Circuit.

[00:00:48] Speaker 06:
Good morning and welcome to the Nakamura Courthouse here in Seattle, Washington.

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We are sitting en banc to hear the matter of Andrew Teeter and James Grell versus Aunt E. Lopez and Daryl Ng.

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If the council are ready to proceed, you may come forward.

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And before we begin, I just want to check with Judge Lee, who is sitting via video.

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Can you hear us, Judge Lee?

[00:01:18] Speaker 11:
Yes, I can.

[00:01:19] Speaker 11:
Thank you.

[00:01:19] Speaker 06:
All right.

[00:01:20] Speaker 06:
Thank you.

[00:01:20] Speaker 06:
Please come forward.

[00:01:27] Speaker 03:
Good morning, Honors.

[00:01:28] Speaker 03:
I've been pleased to court.

[00:01:29] Speaker 03:
My name is Alan Beck on behalf of the Plaintiff of Talents.

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I'll endeavor to reserve 10 minutes for rebuttal.

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Hawaii law remains an unconstitutional infringement on my client's Second Amendment rights.

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That is because it operates as a de facto ban on the carry of butterfly knives.

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Hawaii law prohibits the carrying on the person or a bag or other container carried by the person of any butterfly knife.

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That means there's no meaningful way to carry a butterfly knife for purposes of lawful self-defense.

[00:02:06] Speaker 03:
For that reason, this case is not moot.

[00:02:10] Speaker 03:
And in Brune, the Supreme Court found that arms, which are commonly owned, there must be a right to carry them, purposes of lawful self-defense.

[00:02:26] Speaker 07:
Well, even if the case is not moot, why doesn't the disposition that the Supreme Court did in the New York State Rifle and Pistol Association apply here, that the change in the law has so reconfigured the case that it needs to be sent back for further development, maybe amendment of the pleadings?

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But it's not in a posture where it can be resolved given the reconfiguration.

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What's your response to that?

[00:02:53] Speaker 03:
Yes, Your Honor.

[00:02:55] Speaker 03:
In that case, that case was completely moot.

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All the Supreme Court did was remand back to the trial court to see whether there could be an amendment of the complaint to either phenomenal damages or otherwise keep the case alive.

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And that case ultimately dismissed because there was no mechanism to do so.

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And here, remand is simply not proper.

[00:03:21] Speaker 06:
Counsel, can I ask you, didn't you in the district court explicitly represent that through the instant suit, plaintiffs were challenging Hawaii's restriction on open carry?

[00:03:37] Speaker 06:
No, Your Honor.

[00:03:39] Speaker 03:
We asked to either to possess and carry butterfly knives in the trial court.

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In the district court opinion, interpreted our challenge as an open carry restriction

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because at the time Pruda was on the books.

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The Levin, George, and Bonk opinion, which found that concealed carry was simply completely outside of the scope of the Second Amendment right, so all that remained was the open carry component.

[00:04:13] Speaker 06:
So I thought that you had an exchange with the district court during the motion for summary judgment hearing regarding the scope of the suit.

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And it seemed like you attempted to distinguish the historical laws because they dealt with the concealed carry of bowing knives and other weapons and not bans on possession.

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And so it just seemed to me that this was the first time that you were seeking to change course and argue that the plaintiffs

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have in fact been seeking to enforce a concealed carry.

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So I was confused by that.

[00:04:50] Speaker 03:
Yes, your honor.

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We are seeking to carry.

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And here, this case is distinguishable on several grounds from those historical laws.

[00:04:59] Speaker 03:
Well, I don't think this court needs to go as far as to look to whether this is solely a concealed carry ban, because first,

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It's not just concealed carry.

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You can't carry in a bag or other container in addition to be concealed carry.

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We need to interpret, we have to give meaning to every single word within a statute.

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So, Mr. Beckett, is it your position then that if the weapon, the arm is small enough, a concealed carry ban is effectively a ban of all kinds just because of the nature of the weapon itself?

[00:05:38] Speaker 04:
Well, let me ask you this, because I have seen knives that are in holsters alongside of a belt, you know, openly seen by the public.

[00:05:49] Speaker 04:
Why couldn't a butterfly knife be placed in that way and not run afoul of the statutory change?

[00:05:55] Speaker 03:
Well, because that would be a container, Your Honor.

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And it's illegal to carry inside of a container.

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And again, we have to... You're saying a holster is a container?

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They didn't define it within the legislative text.

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So we have to... The Supreme Court has defined a container in New York v. Belton as any object capable of holding another object.

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So as far as we can tell... There's a knife in a sheath, like a bowie knife alongside someone's belt.

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Is a sheath a container since the knife can't be carried without something?

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And that's the problem with the statute.

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Even if it was just that she also requires it be concealed and in a container and if it's in a sheath and it's partly visible as it concealed then Your honor, it does not say that it says carries concealed on the on the person or

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in a bag or container, your honor.

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And so as we interpret this, this statute, if it was simply in a mesh bag that was visible, it would still run afoul of the statute because it doesn't need to be concealed in order to run afoul of the statute.

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As far as I could tell, the only way to actually carry under the statute is essentially to carry it in your hand or some other extremely impractical manner.

[00:07:24] Speaker 06:
However, here, even if the... Guns carried in a holster and holsters, isn't that the equivalent of a sheath for a knife?

[00:07:36] Speaker 03:
Yes, exactly.

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And this statute under Hawaii law, if you're open carrying, I've distinguished this from the concealed carry portion of this.

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You can openly carry a firearm in a holster and it doesn't

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run afoul of Hawaii's concealed carry laws.

[00:07:57] Speaker 07:
I want to go back to the language of the statute.

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It says any person not authorized by law who knowingly carries concealed on the person or in a bag carries concealed in a bag.

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I don't see it skipping over the word concealed in the second clause.

[00:08:19] Speaker 03:
The way that we've read this is that

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It's or.

[00:08:27] Speaker 07:
It's or, but it's or between two prepositional phrases, on the person, in a bag, and both of them follow carries concealed.

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So it has to be both concealed and in a container.

[00:08:40] Speaker 03:
If this court decides to adopt that reading of the statute, the statute is still unconstitutional.

[00:08:46] Speaker 03:
The reason for that is there is no historical tradition of prohibiting the concealed carry of pocket maps.

[00:08:56] Speaker 01:
Council, if I can have you circle back to Judge Collins' original question up here.

[00:09:03] Speaker 01:
I know that's a lot of faces to search out.

[00:09:06] Speaker 01:
Go back to Judge Collins' earlier question about the adequacy of the record in this case.

[00:09:10] Speaker 01:
One of the arguments that you raised in your briefs is that most

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knives can be openly carried because there's a clip that you can clip to the pocket.

[00:09:21] Speaker 01:
And your argument is that these butterfly knives can't be carried in a similar manner.

[00:09:27] Speaker 01:
What in the record tells us that?

[00:09:29] Speaker 01:
Shouldn't we remand this case, assuming that it's not moot, shouldn't we remand this case to give the state an opportunity to demonstrate that these knives can be openly carried in the same way as all other knives that you're talking about in your argument?

[00:09:46] Speaker 03:
No, Your Honor, for a couple of reasons.

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One, this was an affirmative choice that the State of Hawaii made to repeal the last iteration of the butterfly knife ban.

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And it would set a horrible precedent to allow the state to

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attempt to moot its own case after losing it for all the three-judge panel and then seeking... My question is, assuming it's not moot, there's a question as to whether the record is adequate.

[00:10:18] Speaker 01:
Your argument that you made is that most knives can be openly carried, but that these particular knives can't just because their configuration is such that they can't be openly carried in the same way as other knives.

[00:10:32] Speaker 01:
So my question to you is, why shouldn't we remand for further development of the factual record to give the state an opportunity to demonstrate whether these knives can be carried in the same way as other knives that you're talking about, not familiar with openly carrying knives?

[00:10:48] Speaker 01:
So whatever it is that you're saying in your briefing can be openly carried, I don't know whether these knives can be clipped to pockets in the same way as other knives.

[00:10:58] Speaker 01:
And why shouldn't the state have an opportunity to develop that record?

[00:11:01] Speaker 03:
For a couple reasons, Your Honor.

[00:11:03] Speaker 03:
First, I don't believe that issue is dispositive of the case.

[00:11:06] Speaker 03:
It can be decided simply because this is a concealed carry ban, and there's no historical tradition on prohibiting the concealed carry of pocket knives rather than bowie knives, handguns, etc.

[00:11:21] Speaker 03:
Furthermore, we produced an expert and the state produced an expert.

[00:11:29] Speaker 03:
We filed an expert report.

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They had opted to rebut the contentions inside that expert report, and they decided not to.

[00:11:36] Speaker 03:
They also firmly decide not to oppose our expert, whereas we made the decision to, um, depose their expert, uh, Mr. Lieutenant Robin Macamini, and, uh, they've, uh, just simply waived their opportunity to, uh, make, uh, the, if they wanted further evidentiary findings, they had an opportunity to do that.

[00:11:56] Speaker 03:
They just opted not to do it.

[00:11:59] Speaker 09:
Can I ask a follow up to that question?

[00:12:01] Speaker 09:
What if we disagree with you and we end up sending it back for factual development on

[00:12:06] Speaker 09:
on some of these questions and let the district court address that in the first instance.

[00:12:11] Speaker 09:
It's kind of a weird case in that you won before the panel on the previous span.

[00:12:19] Speaker 09:
So I'm trying to figure out what we should do with regard to that if we send it back to the district court.

[00:12:27] Speaker 09:
As you know, the three-judge panel's decision was ministerially vacated.

[00:12:31] Speaker 09:
when we granted en banc, our order doing that ministerially vacated the order.

[00:12:38] Speaker 09:
If it hadn't been ministerially vacated, then that decision would be still on the books and we would have to decide what to do about that.

[00:12:44] Speaker 09:
And I'm trying to figure out, should we vacate our vacature?

[00:12:48] Speaker 09:
Should we reinstate the tree judge panel and send it back down, which would obviously prevent Hawaii from

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passing the law that they have now taken out.

[00:12:58] Speaker 09:
In other words, it's sort of an odd, like, mirror-image monsoon wear issue here that's complicated by the fact that we ministerially vacated, which I can't actually find a rule that says we should ministerially vacate.

[00:13:09] Speaker 09:
So I'm not sure why we did or what our authority for doing that was.

[00:13:13] Speaker 09:
So I'm trying to figure out, should we, what's your position?

[00:13:16] Speaker 09:
Should we bring the three-judge panel back if we send a decision back, if we send it back down?

[00:13:23] Speaker 03:
Yes, Your Honor, that's exactly what this court should do.

[00:13:26] Speaker 03:
This court made the decision to try to vacate that predicated upon the opportunity here this issue involved.

[00:13:35] Speaker 03:
Now that opportunity, if this court decides to remand, then at a bare minimum, what this court should do is decide to remove the vacatur.

[00:13:49] Speaker 07:
Well, do we have to distinguish between the two issues the panel decided?

[00:13:53] Speaker 07:
One is the threshold question, whether these knives are eligible for any Second Amendment protection.

[00:14:03] Speaker 07:
And then the second was whether a total ban

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is consistent with the Second Amendment.

[00:14:09] Speaker 07:
The second issue seems moot and maybe we can't do anything with that, but the first issue seems very much live since there's no reason to remand on a carry issue unless we resolve the threshold issue of whether these knives are eligible for protection and who has the burden of that, which is what we granted on Banque

[00:14:30] Speaker 03:
Yes, Your Honor.

[00:14:31] Speaker 03:
I mean, that's what I think.

[00:14:33] Speaker 03:
If this case decides to retain jurisdiction, not give it back to the three-judge panel, then it should at bare minimum decide what the threshold question of whether butterfly knives or R&R, or it could just simply remand back to the three-judge panel or

[00:14:50] Speaker 07:
Can you address that burden issue, which was the main issue that we had granted rehearing on?

[00:14:56] Speaker 07:
Who has the burden to show the exception for dangerous and unusual?

[00:15:01] Speaker 03:
Yes, Your Honor.

[00:15:02] Speaker 03:
In Heller, the Supreme Court said that the Second Amendment applies prima facie to all bearable arms.

[00:15:12] Speaker 03:
The state has conceded that the butterfly knife is a bearable arm.

[00:15:17] Speaker 03:
Therefore, they had an affirmative duty to demonstrate that these are somehow devoid of Second Amendment protection.

[00:15:28] Speaker 03:
And in Barun and most recently in Rahimi, the Supreme Court has reiterated that it's a presumptive protection to a Second Amendment protection to all bearable arms.

[00:15:43] Speaker 03:
And that means that the state has an affirmative duty to find that the Second Amendment does not protect the arm.

[00:15:52] Speaker 03:
In the past four and a half years of litigation, the state of Hawaii has never

[00:15:58] Speaker 03:
Don has never attempted to do that.

[00:16:01] Speaker 08:
Can I ask why do you think it's appropriate for us to reach that question?

[00:16:04] Speaker 08:
If the case that you brought is moot, the fact that you might be able to bring a different case to this new and different law doesn't seem like a reason for us to

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sort of preemptively opine on what legal standards will govern the new case that you might bring.

[00:16:24] Speaker 08:
So why should we say any of that if we think that your case is actually moot?

[00:16:28] Speaker 03:
Well, I don't see how this case is moot.

[00:16:33] Speaker 03:
I want to distinguish between merits and mootness.

[00:16:39] Speaker 03:
This court and the Supreme Court, Knox v. SEIU, has said a case becomes moot only when it is impossible for a court to grant any effectual relief whatsoever to the prevailing party.

[00:16:52] Speaker 03:
Now, we have a challenge.

[00:16:54] Speaker 01:
On the mootness question, the district court had characterized your challenge as a challenge to open carry.

[00:17:00] Speaker 01:
Did you ever correct that or take a stand and challenge that characterization in any way?

[00:17:07] Speaker 01:
I don't see it in the record.

[00:17:09] Speaker 01:
And if you haven't, then why isn't that argument forfeited?

[00:17:13] Speaker 03:
Your Honor, again, it was the interpretation.

[00:17:17] Speaker 03:
At the time that the trial court opinion happened,

[00:17:23] Speaker 05:
uh... the uh... uh... prudha was on the books so that's simply the trial court's interpretation of what's left but didn't you say yes the district judge asked you your claim is that you can't uh... possess or openly carry a butterfly knife and the record indicates council said yes there was no pushback or no we're also allegedly our rights are infringed because we can't have a concealed carry of one of these knives

[00:17:52] Speaker 05:
That, to Judge Wynn's point, seems as if you've agreed that the case was about open carry and possession.

[00:18:00] Speaker 05:
And now that the statute has changed, I don't fault you for this because the statute changed, so now we're dealing with something entirely different.

[00:18:06] Speaker 05:
But I didn't see any argument that concealed carry would violate the Second Amendment.

[00:18:12] Speaker 03:
Our briefing within the trial court simply was on carry itself, because— Right.

[00:18:18] Speaker 05:
So you just said carry.

[00:18:19] Speaker 05:
You didn't specify open or concealed.

[00:18:21] Speaker 05:
But when the district judge said open, carry, counsel said yes and agreed.

[00:18:27] Speaker 05:
That was the claim.

[00:18:29] Speaker 05:
And the declarations to show injury were about possession.

[00:18:34] Speaker 05:
And that's no longer an issue.

[00:18:36] Speaker 05:
So I see it as a mootness problem and possibly a standing problem.

[00:18:40] Speaker 03:
Yes, Your Honor.

[00:18:42] Speaker 03:
Again, we were addressing that under the legal landscape that occurred while we were litigating that case.

[00:18:50] Speaker 03:
We weren't forfeiting or waiving any sort of claim.

[00:18:53] Speaker 05:
That's fair.

[00:18:54] Speaker 05:
That's fair.

[00:18:54] Speaker 05:
But a lot of things have happened since you started litigating this case, which is why we're now in a completely different posture.

[00:19:01] Speaker 05:
Brune was decided and then the Hawaii statute was amended and now Rahimi's been decided So why doesn't that suggest that this should be sent back to the district court for the parties to develop the record and make Arguments based on the statute that's on the books now Because again this Not to belabor this point, but you know, they've made a affirmative

[00:19:29] Speaker 03:
They made a decision that they were going to remand, sorry, not remand, that they were going to get rid of their own statute.

[00:19:36] Speaker 03:
And first, they shouldn't be rewarded for attempting to rob this court of appellate authority.

[00:19:44] Speaker 08:
Is it your suggestion that the amendment to the statute was enacted as part of an effort to manipulate the court's jurisdiction?

[00:19:51] Speaker 08:
Yes, Your Honor.

[00:19:52] Speaker 08:
And what evidence of that do you have?

[00:19:55] Speaker 08:
Or is it just the coincidence and timing?

[00:19:58] Speaker 03:
I mean, that's not part of the record, but I've spoken to several people.

[00:20:06] Speaker 03:
I'm pretty active in dealing with the Hawaii legislatures, and a lot of my clients are.

[00:20:11] Speaker 03:
And yeah, they've told me that this was done in response to the litigation.

[00:20:17] Speaker 05:
You're familiar with our decision in Board of Trustees versus Chambers, a non-bond companion from roughly 2020, where we clarified when a change in legislation moots a case, right?

[00:20:28] Speaker 05:
And there has to be some reason for us to believe in the record that this was nefarious or in some attempt to manipulate jurisdiction so that in fact after the case is mooted, Hawaii would turn around and reenact the prior statute.

[00:20:42] Speaker 05:
I mean, is there any suggestion that that's what they're going to do?

[00:20:45] Speaker 03:
I I'm fairly confident that this what this I Will look through the legislative history.

[00:20:54] Speaker 03:
There's about a couple state legislatures that spoken candidly to you know, just people in general about That this was done in response to you have to point to something in the record council anything in the record I

[00:21:11] Speaker 03:
Not on the record, but after this hearing, I'll endeavor 28J something to supplement the record.

[00:21:19] Speaker 08:
But also, if it's in response to the decision, if state legislators pay attention to developments in the law and try to enact statutes that will survive constitutional challenge rather than be unconstitutional, that's a good thing.

[00:21:35] Speaker 08:
That's not behavior that we should try to discourage.

[00:21:37] Speaker 08:
I mean, the concern with manipulation is they move the case, then once the case goes away, they come back and pass the same law again.

[00:21:46] Speaker 08:
And then it can stay on the books for another few years while you try to challenge it.

[00:21:52] Speaker 08:
The manipulation threat and it doesn't sound like you're suggesting that that's what anybody is planning at least in the in the states in bunk.

[00:22:01] Speaker 03:
I think the real concern is they don't want to be able to.

[00:22:09] Speaker 03:
They're attempting to rob this court of its jurisdiction to be able to size live case controversies.

[00:22:14] Speaker 03:
It was done because there was already a three-judge panel opinion.

[00:22:19] Speaker 03:
It would be one thing if they had done this prior to the three-judge panel opinion.

[00:22:23] Speaker 03:
But this was a clear attempt to try and vacate that negative precedent.

[00:22:29] Speaker 10:
But I thought they did it after the en banc had already been granted, didn't they?

[00:22:34] Speaker 10:
So the three-judge panel had already been vacated by the time the change came.

[00:22:40] Speaker 03:
Yeah, I believe the law was being written just immediately after, you know, you know, you may be correct on the date it was passed.

[00:22:48] Speaker 03:
But your point is the process started.

[00:22:50] Speaker 03:
Yeah.

[00:22:51] Speaker 09:
But that, that, yeah, so part of this colloquy,

[00:22:55] Speaker 09:
It seems like the concern that the Supreme Court and our court has expressed in the Muncie work context is you win in a court below, you appeal, you do something to moot, and you try to lock in your win.

[00:23:08] Speaker 09:
And so if they haven't locked in a win, if the same part of them mooted the court,

[00:23:13] Speaker 09:
is the one mooted the case is the one that won below, then we normally Monsignor vacature.

[00:23:18] Speaker 09:
That's how Monsignor typically works.

[00:23:20] Speaker 09:
So here, what happened is they won on Bonk Review and secured vacature of the three-judge panel, of the three-judge panel opinion that they had lost.

[00:23:29] Speaker 09:
So they got that win just by, just through our ministerial vacature, they got that win.

[00:23:34] Speaker 09:
And now they're trying to lock that in by mooting.

[00:23:37] Speaker 09:
That's the concern, not that they'll necessarily reenact.

[00:23:40] Speaker 09:
And that's a structural concern, it seems to me.

[00:23:42] Speaker 09:
That's the story.

[00:23:43] Speaker 09:
And in Monsignor, we don't care whether there's evidence in the record of why they did what they did.

[00:23:49] Speaker 09:
We just care whether or not it creates the incentive to actually

[00:23:55] Speaker 09:
uh, pass it creates the incentive to, um, mood out a case and lock in a win that you got below.

[00:24:02] Speaker 03:
Yes, that's absolutely.

[00:24:03] Speaker 09:
We, we haven't ever required that there actually be some incentive like nefarious, like comments that, that, you know, we're, we're trying to, it's just kind of obvious from what they're doing.

[00:24:12] Speaker 03:
Yes, that's correct, Your Honor.

[00:24:14] Speaker 09:
And so what I'm trying to figure out is, this is different than Monsignor, but what is the proper thing here to ensure that that incentive does not happen in this case or other cases?

[00:24:23] Speaker 09:
And so what I'm trying to figure out is, should we reinstate the panel opinion?

[00:24:26] Speaker 09:
Because it would essentially do the same thing that a Monsignor vacature would do.

[00:24:30] Speaker 03:
That is exactly what this court should do, is vacate the vacature and put the, and just simply reinstate the panel opinion, Your Honor.

[00:24:40] Speaker 03:
And that would resolve any of our concerns regarding the fact that this was done in an attempt to defeat this course.

[00:24:54] Speaker 09:
But it doesn't matter whether it happened here.

[00:24:56] Speaker 09:
What matters is if we allow this to happen, everybody will get the message that what you should do is seek on bank review, get the panel opinion vacated.

[00:25:04] Speaker 09:
maybe wait to see what en banc court you draw in the Ninth Circuit, or maybe not, and then moot out the case, and you get rid of the panel opinion, and you secure—so you basically get the benefit.

[00:25:17] Speaker 09:
It's like the mirror image of the benefit that you get when, you know, that Monsignor is concerned about.

[00:25:22] Speaker 09:
It's not so much what they did in this case.

[00:25:24] Speaker 09:
It's the perverse incentive that it creates, it seems to be.

[00:25:27] Speaker 03:
Yes, I agree.

[00:25:29] Speaker 03:
If this court, this court, it would make for extremely bad public policy.

[00:25:33] Speaker 04:
And if this court were to not reinstate the three-judge panel, I think for all the reasons... Mr. Ben, can I ask, you know, wasn't one of your claims the contention that this total ban included at the home so people could not even possess butterfly knives at the home?

[00:25:50] Speaker 04:
And with the change in the law, is that contemplated anymore?

[00:25:53] Speaker 04:
Any kind of a ban at the home?

[00:25:56] Speaker 04:
No, as of right now, there's not a complete... So in a sense then, you did achieve a type of win for your client in the sense that the legislature recalibrated and has narrowed the scope of its law.

[00:26:13] Speaker 04:
And now one of the main precepts of your claim, a total ban, even including the home, is no longer in place.

[00:26:20] Speaker 04:
It's now just about concealed carry and about the use of the butterfly knife for criminal purposes.

[00:26:25] Speaker 04:
To me that narrows the scope of what's going on with this law and whatever future challenge there might be.

[00:26:33] Speaker 04:
Why isn't that considered a win in your view?

[00:26:37] Speaker 04:
Because it protects certain rights that you are claiming should be protected.

[00:26:41] Speaker 03:
Well, I absolutely believe that we have already prevailed in this case, and that we should be assigned prevailing party status at the appropriate time.

[00:26:52] Speaker 04:
Well, that's not what I'm getting at.

[00:26:54] Speaker 04:
I guess what I'm getting at is why isn't this case moot insofar as if there's a future challenge now just on the concealed carry portion of this, why couldn't that be raised in a future claim, for example, or on remand to determine what the parameters of that new law

[00:27:09] Speaker 04:
how that implicates the Second Amendment at that point?

[00:27:13] Speaker 03:
Well, because, again, the standard for determining mootness is any effectual relief.

[00:27:19] Speaker 03:
And here there is effectual relief that can be granted because there is a challenge to Hawaii's

[00:27:29] Speaker 03:
you know to the carry restrictions that are before the court and there's no requirement that you just simply that the law has stayed the exact same in in order to you know in order to fight off mootness just simply has be anything and that any relief that can be given and I mean that's the precedent.

[00:27:53] Speaker 05:
Do you want us to say that the current statutes ban and concealed carry violates the Second Amendment?

[00:27:59] Speaker 05:
And we would have to do that on this record, where the parties didn't brief that or present the historical analogs to address that.

[00:28:08] Speaker 03:
The vast majority of the issues before this court are all, this court could order supplemental briefing.

[00:28:17] Speaker 03:
And that would alleviate any concerns that this court may have that.

[00:28:23] Speaker 05:
We shouldn't really be defect finding.

[00:28:24] Speaker 05:
And you have made some factual arguments that butterfly knives cannot be

[00:28:30] Speaker 05:
carried openly because of the nature of the weapon.

[00:28:34] Speaker 05:
So how would we resolve that as the Court of Appeals on Bonk in the first instance?

[00:28:40] Speaker 03:
Well, because it wouldn't be for the first instance, Your Honor.

[00:28:42] Speaker 03:
This is evidence that I produced and was in the record in the trial court.

[00:28:48] Speaker 03:
The state did not dispute that evidence.

[00:28:51] Speaker 03:
They waived any right to challenge that evidentiary record.

[00:28:57] Speaker 03:
Now, here on appeal,

[00:29:01] Speaker 03:
this court just simply has to assume those facts are in fact true because they haven't disputed them before.

[00:29:07] Speaker 03:
Just simply amending their law is an opportunity to reopen the record.

[00:29:11] Speaker 05:
And again, I think- Why would they have disputed that below?

[00:29:16] Speaker 05:
It wasn't the issue.

[00:29:17] Speaker 05:
The issue was possession and open carry.

[00:29:20] Speaker 05:
Those were the two injuries your clients were claiming.

[00:29:24] Speaker 03:
Well, because, well, for several reasons.

[00:29:27] Speaker 03:
One of which it's the

[00:29:32] Speaker 03:
The main mechanism to attempt to carry, say, a standard pocket knife openly is a clip.

[00:29:38] Speaker 03:
As part of our demonstration to show that a butterfly knife opens slower than a typical pocket knife, our expert showed that it does not have a

[00:29:55] Speaker 03:
that they typically do not have clips that interfere with the mechanism.

[00:29:59] Speaker 03:
So the fact there's no clip and hence you can't conceal

[00:30:05] Speaker 03:
open-cariot was part and parcel of the dispute over how the mechanism of a butter knife functions.

[00:30:17] Speaker 03:
And us showing that the state's position that these are somehow unusually dangerous knives compared to a standard pocket knife was faulty.

[00:30:31] Speaker 06:
Did you want to reserve your last minute?

[00:30:33] Speaker 06:
Yes, Your Honor.

[00:30:34] Speaker 06:
OK.

[00:30:35] Speaker 06:
10 minutes did happen.

[00:30:36] Speaker 03:
Thank you.

[00:30:51] Speaker 02:
Good morning.

[00:30:52] Speaker 02:
Thank you, Chief Judge McGeehan.

[00:30:53] Speaker 02:
It may please the court.

[00:30:54] Speaker 02:
Rudy Swanson on behalf of the state appellees in this case.

[00:30:58] Speaker 02:
This case is now moot.

[00:31:00] Speaker 02:
This case was brought and litigated as a challenge to Hawaii's ban on possession and all public carry of butterfly knives.

[00:31:06] Speaker 02:
That's how this case was litigated from the very beginning, and the plaintiff's insistence that they now wish to challenge a ban on concealed carry of butterfly knives is contrary to numerous representations that they made.

[00:31:17] Speaker 07:
Well, does the complaint limit to concealed carry, or does the complaint just say carry?

[00:31:22] Speaker 02:
The complaints, prayer for relief, just says carry, and I don't think we would be making this argument if we were just stuck with the complaint, although I will say that the complaint says at paragraph 11, defendants retain the ability presumptively to regulate the manner of carrying arms.

[00:31:37] Speaker 02:
So from the very beginning, they were already saying the manner of carrying is subject to presumptive regulation.

[00:31:42] Speaker 07:
But that's not a concession.

[00:31:43] Speaker 07:
No, Your Honor.

[00:31:44] Speaker 07:
And the main thing you're relying on is this exchange with the district judge on ER 61 and 62,

[00:31:52] Speaker 07:
where the district judge is trying to clarify the scope of the challenge and says, are you challenging the entire statute?

[00:31:59] Speaker 07:
We would like to carry it, but we're making two separate challenges, both in the home and the carrying, Your Honor.

[00:32:07] Speaker 07:
And then the court responds, well, didn't the Ninth Circuit rule against you in Peruta on that, en banc?

[00:32:13] Speaker 07:
and then the response in Peru to the Ninth Circuit ruled that there's no freestanding right to concealed carry and then the court goes on and says but there's been no ruling has there as far as the right to carry openly correct and then the responses the Ninth Circuit found that a three-judge panel

[00:32:30] Speaker 07:
that you have a constitutional right to open carry outside the home, however the opinion was taken en banc, and then comes the summary comment from the court, you're challenging both the right to possess a butterfly knife in your home as well as the right to carry it openly in public.

[00:32:45] Speaker 07:
Isn't that, on that record, just a development of the arguments left after Peruta and not a forfeiture of a claim that if the law changes and the statute changes,

[00:32:57] Speaker 07:
that I'm not saying anything else about Carrie.

[00:33:01] Speaker 02:
I think you're right, Your Honor, that if that were the only thing we were relying on, we would also have a harder argument, but it is not.

[00:33:07] Speaker 02:
After Bruin, the plaintiff said in their supplemental brief to this court, concealed carry can be banned when the government allows for the open carry of arms on page 20 of their supplemental brief.

[00:33:16] Speaker 02:
The next page, they say, a ban on possession is nothing like a restriction on concealed carry.

[00:33:21] Speaker 07:
But that's after the state had won on the whole thing.

[00:33:25] Speaker 07:
You won on the whole issue of possession, that the possession could be banned.

[00:33:32] Speaker 07:
in the district court.

[00:33:34] Speaker 02:
Yes, Your Honor, this was in their appellate brief, so I'm saying.

[00:33:36] Speaker 07:
Right, so they're attacking a broader position where a ban on total possession has been upheld, and they're saying, well, you can't have that extreme position, and that doesn't, the district court didn't reach the issue of whether or not carry would be separately a problem if possession could not be banned.

[00:33:59] Speaker 02:
Well, I don't think that's how I read those sentences in their brief.

[00:34:02] Speaker 02:
It's not that they're saying, you know, this isn't a case about concealed carry.

[00:34:05] Speaker 02:
They're making an affirmative representation to the court.

[00:34:08] Speaker 02:
Concealed carry can be banned when the government allows for the open carry of arms.

[00:34:12] Speaker 02:
That's an unqualified statement that they've repeated.

[00:34:14] Speaker 11:
I'm going to interrupt.

[00:34:15] Speaker 11:
I'm looking at the brief.

[00:34:16] Speaker 11:
It actually says these cases stand for the proposition that concealed carry say.

[00:34:21] Speaker 11:
I think they're talking about the cases at the time.

[00:34:24] Speaker 11:
I don't think they were necessarily asserting their position.

[00:34:28] Speaker 02:
I'm afraid I don't really see the distinction, Your Honor.

[00:34:31] Speaker 02:
They're describing what the law is based on.

[00:34:34] Speaker 11:
The case law here has been shifting quite dramatically over the past several years.

[00:34:38] Speaker 11:
Given the shifting legal landscape, to say that you forfeit the argument when one case was good at one point, no longer good, it seems a little hard to say that you forfeit the argument.

[00:34:53] Speaker 10:
Well, isn't this any, oh sorry, finish answering that question and then I'll ask a follow-up.

[00:34:58] Speaker 02:
No, Your Honor.

[00:34:58] Speaker 02:
All I was going to say is, you know, we think the Court can resolve this issue of mootness on the basis of waiver, but if the Court doesn't agree and the Court thinks that there may be some surviving aspect of the challenge, then the Supreme Court gave a road map for how to handle that situation in the City of New York.

[00:35:14] Speaker 02:
And you know, my friend on the other side said that the city of New York was completely different because the case gear was completely moot.

[00:35:22] Speaker 02:
That's not an accurate description of that case.

[00:35:24] Speaker 02:
What happened there was the challenge was to a flat ban on transporting weapons in the state of New York.

[00:35:31] Speaker 02:
The state amends that law and the plaintiffs were making an argument much like the plaintiffs are here.

[00:35:37] Speaker 02:
They're saying, well, actually, you know, the new ban still puts a really heavy burden on what we want to do with our weapons.

[00:35:44] Speaker 02:
And there was a dispute, I think, between the parties about whether that claim had been preserved, about whether a retrospective damages claim had been preserved.

[00:35:51] Speaker 02:
The Supreme Court says, you know what, that's not how this case has been litigated in the lower courts.

[00:35:55] Speaker 02:
Let's send it back.

[00:35:56] Speaker 02:
Let's let the lower courts sort out, first of all, whether this issue has been preserved, and second, if so, to address it in the first instance.

[00:36:02] Speaker 07:
And so that... And the Court said that even with respect to claims that may not yet have been raised because of the reconfiguration of the case, correct?

[00:36:10] Speaker 02:
That's exactly right.

[00:36:11] Speaker 07:
Yes.

[00:36:11] Speaker 07:
And so maybe this whole issue of whether or not they didn't technically preserve concealed carry isn't really relevant when the state has reconfigured the whole case and the New York State case says, well, then it goes back and you sort out all the problems that arise from that.

[00:36:29] Speaker 02:
Well, right.

[00:36:29] Speaker 02:
I mean, I think there were not the same issues of affirmative waiver in City of New York that you have here.

[00:36:35] Speaker 02:
There was no evidence, for example, that the plaintiffs in that case had previously taken the position in their briefing that it would be OK if the state of New York had enacted the statute that it did.

[00:36:47] Speaker 02:
But that, I think, is really the only difference between City of New York in this case.

[00:36:52] Speaker 09:
So can I ask?

[00:36:53] Speaker 09:
So if we went that direction, you've heard the question I've been asking.

[00:36:56] Speaker 09:
And I'm looking at the New York case here.

[00:36:58] Speaker 09:
They vacated the Second Circuit decision, right?

[00:37:03] Speaker 09:
Yes, Your Honor.

[00:37:03] Speaker 09:
Who had won in the Second Circuit?

[00:37:05] Speaker 09:
I believe the state had, Your Honor.

[00:37:07] Speaker 09:
The state had won.

[00:37:07] Speaker 09:
Who won in the Ninth Circuit, in your case?

[00:37:10] Speaker 02:
Well, temporarily, the plaintiffs did.

[00:37:13] Speaker 02:
Right.

[00:37:13] Speaker 09:
And you secured a ministerial vacatur of that by getting en banc granted, which is different, which is different than if the Supreme Court—if you sought cert and the Supreme Court had granted cert, it wouldn't have vacated the decision.

[00:37:28] Speaker 09:
So is there any evidence in

[00:37:31] Speaker 09:
the New York case, the Supreme Court's New York case, that they would have vacated the Second Circuit decision if it had been similarly situated to this case, to where the state had actually lost at the Second Circuit, and then done something to moot the case.

[00:37:46] Speaker 02:
Yes, Your Honor, I think that evidence really comes from Munsingware itself.

[00:37:49] Speaker 02:
The Supreme Court says in Munsingware that the point of this practice is to clear the path for future litigation.

[00:37:55] Speaker 09:
No, Munsingware, I think it's exactly the opposite of that.

[00:37:59] Speaker 09:
Certainly, as Monsignor has developed in the Supreme Court and in our court, if the state loses and then moots a case, they don't get to knock out the lower court decision.

[00:38:10] Speaker 09:
That's the rule in Monsignor.

[00:38:12] Speaker 09:
In Monsignor, if you win and then there's something to moot and try to lock in your win, then equitably we're like, we're going to take away your win, because that creates the potential for gangsmanship.

[00:38:23] Speaker 09:
But if the state loses and then does something to moot,

[00:38:26] Speaker 09:
which is what happened here, then normally we don't vacate the decision.

[00:38:31] Speaker 02:
A couple of things going on in there.

[00:38:33] Speaker 02:
I think first of all, Your Honor, I don't think it's accurate to say that the state lost here.

[00:38:36] Speaker 02:
I think the timeline is really important.

[00:38:39] Speaker 02:
The full court did vacate, you know, I don't think I agree that it's a ministerial vacater.

[00:38:44] Speaker 02:
Wait, wait, wait.

[00:38:44] Speaker 09:
Say that again.

[00:38:45] Speaker 02:
I don't agree that it's a minister.

[00:38:46] Speaker 02:
You say the whole court vacated the state?

[00:38:47] Speaker 02:
Yes, the full court.

[00:38:48] Speaker 09:
No, we didn't, though.

[00:38:49] Speaker 09:
I mean, I know it says that in the order, but none of us ever voted to vacate that.

[00:38:53] Speaker 09:
There's no rule that says it vacated.

[00:38:55] Speaker 09:
That was just a ministerial vacature.

[00:38:57] Speaker 02:
It is in the circuit advisory notes.

[00:38:59] Speaker 09:
No, it's not.

[00:39:00] Speaker 09:
In fact, even today, there's not a rule that says to vacate the decision.

[00:39:04] Speaker 09:
It may have been an altruverous action by this Court.

[00:39:07] Speaker 02:
Your Honor, I agree with you that it is not in the rules.

[00:39:09] Speaker 02:
It is in the circuit advisory notes.

[00:39:12] Speaker 09:
No, it's not to vacate the decision.

[00:39:13] Speaker 09:
It's not.

[00:39:14] Speaker 09:
Go ahead and submit something on briefing on that, but it's not.

[00:39:18] Speaker 02:
If I could just ask, do you have the number handy?

[00:39:21] Speaker 02:
It's circuit advisor rule 35.2.3, I think.

[00:39:25] Speaker 02:
It says that the act of the court in granting a hearing en banc operates as a vacater of the original panel opinion.

[00:39:32] Speaker 02:
But even if that weren't true, the court did vacate the opinion.

[00:39:37] Speaker 02:
And that is a matter of course.

[00:39:38] Speaker 02:
I mean, I've never seen an en banc order from this court that didn't vacate.

[00:39:41] Speaker 02:
I mean, that's regular order in this court.

[00:39:43] Speaker 10:
Well, that's not true because we didn't do it for several years.

[00:39:45] Speaker 10:
I mean, we've gone back and forth on this issue.

[00:39:47] Speaker 09:
Sure.

[00:39:47] Speaker 09:
I'm sorry.

[00:39:48] Speaker 10:
So you've got to be careful about what you say.

[00:39:49] Speaker 09:
Yes, sir.

[00:39:50] Speaker 09:
This is actually important, because we didn't do it for a long time.

[00:39:54] Speaker 09:
In fact, we used to not vacate at all.

[00:39:58] Speaker 09:
It was like winning the Supreme Court grant cert.

[00:40:00] Speaker 09:
The decision would stay in place, and it would be an exceptional case we vacate.

[00:40:03] Speaker 09:
Then we gave permission to the en banc court panel, if they wanted to, to vacate the decision.

[00:40:08] Speaker 09:
And then we changed it to say that you shouldn't cite the case,

[00:40:12] Speaker 09:
But we actually don't have a rule.

[00:40:14] Speaker 09:
We recently amended our rules, the advisory, to say that at the end of this year, then there will be an advisory rule, if you want to call it.

[00:40:25] Speaker 09:
That's not called a rule, but that will say that the decision gets vacated.

[00:40:30] Speaker 09:
But as of the time when your case went en banc, there was no rule saying it needed to be vacated.

[00:40:35] Speaker 09:
As best I can tell,

[00:40:37] Speaker 09:
one of our staff attorneys has sent out an order that said that.

[00:40:40] Speaker 09:
None of us voted on it.

[00:40:41] Speaker 09:
So it just seems, you can see where I'm coming from, it seems weird that that ministerial vacature would somehow control in this case.

[00:40:50] Speaker 09:
Why wouldn't we, why should the fact that we just happen to ministerially vacate a decision, maybe without authority, control whether or not the three-judge panel decision

[00:41:00] Speaker 09:
will stay in place, because it seems like if it hadn't been ministerially vacated, there'd be a really good argument for the fact that we would not, Monsignor, vacate that decision, because the state here mooted a case that it had lost in.

[00:41:16] Speaker 02:
Under Bancorp, it's actually not a hardline rule that vacatur wouldn't happen even after the losing party.

[00:41:22] Speaker 02:
Right.

[00:41:23] Speaker 02:
It's an equitable decision.

[00:41:24] Speaker 02:
It's an equitable decision that the court would make.

[00:41:26] Speaker 09:
And I also want to just sort of think about... So explain to me equitably why... Maybe that's maybe helpful.

[00:41:30] Speaker 09:
Explain to me, assuming that we have, and I don't know where everybody would be at this, but assuming that we have an equitable... Explain to me why equitably we should leave the vacatur in place instead of vacating our vacatur order.

[00:41:43] Speaker 02:
Well, it flows from, I think, the limits on Article III jurisdiction.

[00:41:45] Speaker 02:
I mean, the point of the mootness doctrine is basically the same as the standing doctrine of standing set in time.

[00:41:51] Speaker 02:
And the idea is that the court only addresses disputes when they arise in an adversarial context.

[00:41:57] Speaker 02:
And so to vacate the vacator at this point would operate as a judgment on the merits.

[00:42:03] Speaker 02:
it would operate as passing an advisory opinion.

[00:42:07] Speaker 02:
It seems kind of weird.

[00:42:08] Speaker 09:
So I see your point on that.

[00:42:09] Speaker 09:
It seems kind of odd that we would retain the ability, if the case was completely moot, to vacate a decision, a three-judge panel decision, which we do.

[00:42:19] Speaker 09:
And the Supreme Court will do months and more vacatures of lower court decisions when they become moot.

[00:42:24] Speaker 09:
But to say that somehow the fact that we had ministerially vacated meant that we couldn't retain the ability

[00:42:30] Speaker 09:
to make that Munsingware equitable decision and put the decision back into place.

[00:42:35] Speaker 02:
Your Honor, I don't think that's actually at all odd, because the vacator in the Monsignor context is the Supreme Court.

[00:42:41] Speaker 02:
And this is a direct quote from Monsignor.

[00:42:44] Speaker 02:
It says, it clears the path for future relitigation.

[00:42:47] Speaker 02:
What happens is you basically take a law off the books so that it doesn't bind anybody.

[00:42:51] Speaker 02:
It's not preclusive.

[00:42:52] Speaker 02:
It's not presidential.

[00:42:53] Speaker 02:
You are essentially allowing for the issue to be litigated in the fullness of time if it becomes concrete again.

[00:43:00] Speaker 02:
And if you were to vacate the vacator here, you would be doing exactly the opposite, right?

[00:43:05] Speaker 09:
That we only want to clear the books so that you can relitigate if the state sort of has, doesn't have unclean hands by having mooted a case that it lost in.

[00:43:18] Speaker 09:
But where the state moots a case,

[00:43:21] Speaker 09:
intentionally moots a case that they lost in, then often we won't Monsignor vacatur, because we're like, well, you lost in that case, you did something to moot it, so you deserve to continue to have that decision against you on that issue, and so we won't get rid of that decision.

[00:43:37] Speaker 09:
So I get your point, but that rationale only works when it mooted through something that wasn't something that you caused.

[00:43:46] Speaker 02:
Well, I think the Supreme Court's opinion in Buchanan actually says that the incentives should be sort of the opposite here.

[00:43:51] Speaker 02:
I mean, the Supreme Court's opinion in Buchanan says that we want to promote legislatures to act to amend the law, to act through the democratic process, to ensure that laws are being amended democratically.

[00:44:03] Speaker 02:
So I understand your argument there.

[00:44:05] Speaker 09:
So the question is, why would you not want to have this decision put back into place?

[00:44:12] Speaker 09:
Because the only reason I could think you wouldn't would be because you

[00:44:15] Speaker 09:
the concern of bringing back the old law.

[00:44:17] Speaker 09:
Obviously, if we thought you were going to bring back the old law, then this case would not be moot, right, because the voluntary cessation doctrine.

[00:44:23] Speaker 09:
So all this would be doing is ensuring that what we said in glazing health, if we brought the case back, it would just be ensuring that you don't go back, the legislature doesn't play games by trying to come back and re-pass the law, because they wouldn't be able to, because the panel opinion would keep them from doing it.

[00:44:38] Speaker 09:
In other words, it would just hold you to what the legislature has already done.

[00:44:42] Speaker 09:
Why would that prejudice you?

[00:44:43] Speaker 02:
Well, Your Honor, I think it would prejudice the state not just because it would prevent them from reading back the law, because I think that there's no evidence in this record suggesting that the state has any intent of doing that.

[00:44:55] Speaker 02:
But it does create presidential law going forward for other cases.

[00:44:59] Speaker 02:
And in that sense, it would continue to bind not just the state of Hawaii, but it would bind all the other states in this circuit, and it would be persuasive.

[00:45:09] Speaker 09:
be true in the Monsignor context if that you know just the ordinary normal not this weird contest right now but where you where you lost and then you're appealing say to the Supreme Court and then you decide you do something to moot the case you'd be like well we're probably not gonna get a Monsignor vacature so that this law is gonna get locked in I mean you still have that concern in the ordinary Monsignor vacature this concern about we're gonna get locked in precedent

[00:45:35] Speaker 02:
Yes, your honor that that's certainly true, but I think here we really are in a situation that is closer to Essentially if that case had been mooted before a panel opinion issued I mean it's important to remember that the state had no there neither side had any indication what what this panel would do and I ask you to distinguish between the two issues in the prior panel opinion one was the threshold issue of whether or not the Knife at issue here is entitled to any

[00:46:02] Speaker 07:
second amendment protection at all.

[00:46:05] Speaker 07:
And the second is whether, if the answer to that question is yes, is a total ban consistent with the second amendment.

[00:46:13] Speaker 07:
The second issue seems moot and I understand your arguments that it would be a judicial act to enter a judgment on that issue when it's dead.

[00:46:21] Speaker 07:
But the first issue doesn't seem to be moot because if we do a New York state rifle and send this back,

[00:46:29] Speaker 07:
There'd be no point in sending it back if you were right in your en banc petition that this weapon is not entitled to any level of protection and they didn't carry their burden, which you said is theirs and the panel was wrong.

[00:46:44] Speaker 07:
Those issues don't seem to be moot.

[00:46:45] Speaker 07:
So why shouldn't we decide those issues before, because it might moot sending it back.

[00:46:52] Speaker 02:
I think there's sort of two responses to that, Your Honor.

[00:46:55] Speaker 02:
I think the first is sort of a prudential issue, which is that it's not at all clear that that issue actually will be important going forward, even if the court were to believe that this aspect of the concealed carry challenges survives.

[00:47:10] Speaker 02:
In that situation, I think the state would have a much sort of more clear, direct path to sustaining the law under the historical precedence.

[00:47:18] Speaker 02:
But when you have to, these are threshold issues you'd have to decide no matter what.

[00:47:21] Speaker 10:
Whether it's an arm, that's the first step under Burlitt.

[00:47:26] Speaker 02:
It's a question that certainly would have to be answered if you were addressing the whole issue, but it's very common for courts to say, we're going to assume, we're going to assume arguing a law or a weapon is protected and then decide whether it's... Which is what the district court did here.

[00:47:42] Speaker 02:
That is exactly what the district court did here, and it could do that again on remand.

[00:47:45] Speaker 02:
So I think it's actually not the case that that issue has to be resolved going forward.

[00:47:48] Speaker 02:
And then, of course, we also have our argument, which we've already discussed, that that aspect of the case is not, in fact, going to be presented because we think that they've waived that issue.

[00:47:59] Speaker 02:
And I think here- Is there any- Is it moot?

[00:48:00] Speaker 07:
So it's an issue of waiver or an issue of prudential judgment, but that issue isn't moot in this case in the current posture, is it?

[00:48:09] Speaker 02:
I think it is moot in an Article III sense if they have waived the challenge to their concealed carry ban, because that means that there is no relief that this court can grant these plaintiffs.

[00:48:18] Speaker 08:
And do you think that even if we remanded our New York State rifle, that they would be held to that—I mean, so on remand in the district court, it would be your position that they would be held to that waiver, notwithstanding the many developments both in the Hawaii statute and in law from the Supreme Court that took place since they made the statement that you claimed to be the waiver?

[00:48:40] Speaker 02:
Yes, Ron, I think they would.

[00:48:42] Speaker 02:
And the reason for that is because the only real change that is potentially relevant to sort of whether they would press that claim or not is Bruin.

[00:48:49] Speaker 02:
And they repeatedly affirmed after Bruin that concealed carry can be banned as long as public or open carry is allowed.

[00:48:56] Speaker 05:
But that raises the question of whether open carry is allowed.

[00:48:59] Speaker 05:
Your friend on the other side argued you said this statute is a de facto ban on any carry because you can't openly carry a butterfly knife.

[00:49:07] Speaker 05:
How do you respond to that?

[00:49:09] Speaker 02:
Well, first of all, waiver generally doesn't allow a party to sort of invent a new argument later when that position that you've previously taken is becoming in need.

[00:49:16] Speaker 05:
Let's assume that we would let them do that because of all the changes in the law.

[00:49:19] Speaker 02:
If the court were to permit that, then I think that is exactly why the court should follow the roadmap laid out in city of New York.

[00:49:25] Speaker 02:
I mean, you know, there were threshold questions in city of New York that the Supreme Court might still have addressed, but it didn't do that.

[00:49:31] Speaker 02:
It vacated everything and sent it back to the district court to address everything in the first instance.

[00:49:36] Speaker 05:
So how do you respond to their argument that you could not carry a butterfly knife in a holster or a sheath or a clear bag or something along those lines?

[00:49:46] Speaker 05:
Essentially, the only thing you could do is perhaps carry it in your hand.

[00:49:49] Speaker 02:
So I think there's a textual argument and then a physical, practical argument.

[00:49:57] Speaker 02:
On the textual argument, the statute, we agree entirely with the reading that the court was suggesting earlier that whoever knowingly carries concealed on the person or in a bag or other container, that the modifier concealed applies to each of those.

[00:50:12] Speaker 02:
And it's true that the statute doesn't technically define concealed in this context, but that's only really a technicality.

[00:50:18] Speaker 02:
Section 134-1 of the Hawaii Revised Statutes contains a definition of concealed that applies.

[00:50:25] Speaker 02:
It says concealed means in relation to a firearm.

[00:50:29] Speaker 02:
I recognize there are sort of expressio unius questions here, but I think that the definition that's about to follow is one that is really common sense and would, I think, pretty clearly be adopted.

[00:50:40] Speaker 02:
In relation to other uses of concealed, I think this is probably a vestige of the fact that the statute used to only talk about concealed in the context of firearms.

[00:50:48] Speaker 02:
But it says concealed means in relation to a firearm that the firearm is entirely hidden from view of the public and not discernible by ordinary observation.

[00:50:58] Speaker 02:
So I think that that is the definition of concealed that would apply here.

[00:51:01] Speaker 02:
And so if you're carrying something in a sheath or a holster, then absolutely we think that that would be something that falls clearly within that definition.

[00:51:12] Speaker 02:
I guess outside that definition in the sense that it is not concealed if it's visible to the public in a sheath or holster.

[00:51:19] Speaker 10:
Can I go back to the question about the difference between the arms and the actual historical analog?

[00:51:28] Speaker 10:
As to the historical analog, you've made a pretty compelling point that there's new factual developments that need to be determined.

[00:51:34] Speaker 10:
Is the same true for whether it's an arm?

[00:51:37] Speaker 10:
That would be the same analysis, the same arguments that were raised in the district court and before the panel.

[00:51:43] Speaker 10:
There's no difference under the new law versus the old law.

[00:51:47] Speaker 02:
If the court believes that Bruin or Rahimi, I suppose, but really mostly Bruin, is relevant to that issue, then I think the answer is yes.

[00:51:55] Speaker 02:
The state should be given an opportunity to develop a new record on that.

[00:51:58] Speaker 10:
On whether it's an arm, Rahimi would seem to go potentially to the role of whether criminals should be included or non-criminals should be excluded.

[00:52:12] Speaker 10:
But as to whether it's an arm,

[00:52:15] Speaker 10:
Can you point to any new factual development that hasn't been presented to the district court or the panel that needs to be developed?

[00:52:25] Speaker 02:
I should clarify that I think the question that is relevant is if you think Bruin affects who has the burden,

[00:52:31] Speaker 02:
on that issue.

[00:52:33] Speaker 02:
If you think that after Bruin, it's it's so that's illegal.

[00:52:36] Speaker 02:
Yes, that's a legal issue.

[00:52:38] Speaker 02:
Are there any?

[00:52:39] Speaker 10:
I'm going to just repeat my question one more time.

[00:52:41] Speaker 10:
Are there any factual?

[00:52:43] Speaker 10:
Is there any factual development that you think needs to be addressed to determine whether this is an arm?

[00:52:51] Speaker 02:
Yes, Your Honor.

[00:52:52] Speaker 02:
I think we would need to address whether it is commonly carried for the lawful purposes of self-defense.

[00:52:58] Speaker 02:
And I think that that is an issue where essentially in the district court, both parties... But that presupposes a legal conclusion, of course, right?

[00:53:05] Speaker 10:
Because you're presupposing that that is a legal requirement of determining whether it's an arm.

[00:53:12] Speaker 02:
Well, of course, Your Honor, yes, absolutely, certainly.

[00:53:15] Speaker 02:
But we believe that, yes, Judge Lee.

[00:53:17] Speaker 11:
If I could ask that question.

[00:53:18] Speaker 11:
So another way to ask is does Hawaii's new statute, Act 21, affect the question of whether a butterfly knot is an arm under the Second Amendment?

[00:53:29] Speaker 02:
The amendment of the statute, I think, does not affect that issue, no, Your Honor.

[00:53:34] Speaker 02:
But the record was all developed in this case before Bruin.

[00:53:38] Speaker 02:
And so I think the relevant question for whether factual development should be granted, and this is part of why the state consistently asked for a remand after Bruin in this case, is if you think that Bruin makes clear, oh, actually the state bears the burden on this issue, it's pretty clear from the record that both parties in the district court were essentially relying on the idea that the other party had the burden of proof on that issue.

[00:54:02] Speaker 10:
Why don't we decide that question and then let the district court figure it out?

[00:54:07] Speaker 10:
That would seem to be the more efficient way to handle it, wouldn't it?

[00:54:10] Speaker 02:
Well, again, I think, Your Honor, that brings us back to these questions of Article 3 mootness and whether that's actually a question that needs to be addressed in this case or not.

[00:54:18] Speaker 10:
But that seems like that's a different... If you're right that the whole case is moot, I agree with you.

[00:54:23] Speaker 10:
But if if there's a difference between, you know, if some portion of this is not moot, and if this case is going to go forward, then why don't we decide this issue that you've already said is, you know, causing a lot of consternation in the district court?

[00:54:40] Speaker 02:
I think for all the reasons we've said, which is it's not altogether clear that that issue is going to be relevant going forward.

[00:54:46] Speaker 02:
But if the court does that and decides that, yes, we are going to conclude that the plaintiffs have not waived all of their arguments, even though they repeatedly, after Bruin took the position that concealed carry can be banned.

[00:54:57] Speaker 02:
If the court does that, and if the court also— But they haven't waived on the arms.

[00:55:00] Speaker 10:
Okay, never mind.

[00:55:01] Speaker 02:
I don't want to rehash it.

[00:55:02] Speaker 06:
I got it.

[00:55:03] Speaker 02:
So can I ask this?

[00:55:04] Speaker 06:
Are you conceding that it is a bearable arm, that the butterfly knife is a bearable arm?

[00:55:10] Speaker 02:
I think we have never disputed that it falls within the literal definition of arm.

[00:55:14] Speaker 02:
I think the dispute that the parties have had has always been whether that is sufficient to trigger the presumptive protections of Bruin or whether there is an additional showing that a plaintiff needs to make to ensure that the weapon comes within the scope of those that are protected by the sentence.

[00:55:28] Speaker 06:
And was that done previously in the court below?

[00:55:34] Speaker 06:
argued, was there facts presented?

[00:55:37] Speaker 06:
Because Bruin hadn't passed by then, had they?

[00:55:39] Speaker 06:
Had it?

[00:55:40] Speaker 02:
Bruin had not been adopted at this time.

[00:55:42] Speaker 02:
This was in the district court.

[00:55:44] Speaker 02:
And yes, the parties did brief that issue both ways.

[00:55:48] Speaker 02:
And as we discussed before, the district court ultimately assumed that they were protected under the Second Amendment and resolved it.

[00:55:54] Speaker 06:
And did the district court make a determination on who had the burden?

[00:56:00] Speaker 02:
No, Your Honor, it did not.

[00:56:02] Speaker 06:
And since Bruin, who has the burden?

[00:56:05] Speaker 06:
Isn't it the state?

[00:56:06] Speaker 02:
We don't agree that the state has the burden on that issue even after Bruin, but if the court disagrees and think that the state does have the burden after Bruin, then I think, for the reasons I was discussing with Judge Nelson, the right disposition, if the court gets all the way to that issue in this case, which we think is inappropriate, but if it happens, then their disposition is to resolve that question of who has the burden and then to allow the state to actually develop its burden on that issue.

[00:56:30] Speaker 07:
Why wouldn't the state have the burden?

[00:56:32] Speaker 07:
If we are in—London's second amendment case law uses First Amendment analogies.

[00:56:37] Speaker 07:
And in the First Amendment context, we have categorical exceptions from the protection of free speech.

[00:56:43] Speaker 07:
Isn't the state—doesn't the state have the burden to show that a particular

[00:56:48] Speaker 07:
defendant's speech or that a statutory category regulating a category of speech is unprotected when it otherwise would be speech.

[00:56:57] Speaker 07:
You'd have to show that it's liable of defamation or obscenity.

[00:57:02] Speaker 07:
Doesn't the state have that burden?

[00:57:03] Speaker 07:
And why wouldn't that transpose into the Second Amendment context that if it's presumptively an arm, but you claim it's the type of arm that doesn't fall in, you have the burden?

[00:57:13] Speaker 02:
Yes, your honor.

[00:57:13] Speaker 02:
So I think that you're right that the state has the burden on those issues in the First Amendment context, but it's not the case that the plaintiff has no burden in the First Amendment context either.

[00:57:23] Speaker 02:
And what happens is if there's an edge case where the question is not whether your speech or conduct is historically protected, but whether you have engaged in speech or expressive conduct at all,

[00:57:34] Speaker 02:
If you are addressing that question, the plaintiff has an initial burden to prove that they are engaged in something that is protected by the First Amendment.

[00:57:41] Speaker 02:
And that's the analogy that we think is more appropriate to this specific question.

[00:57:45] Speaker 07:
You seem analogous to whether it's just a bearable arm.

[00:57:49] Speaker 07:
Am I speaking?

[00:57:49] Speaker 07:
Am I expressing?

[00:57:51] Speaker 07:
That would be your burden.

[00:57:52] Speaker 07:
And then you say, well, it's the bad type that falls into a categorical exception.

[00:57:58] Speaker 07:
You seem to be claiming a categorical exception for dangerous and unusual weapons, and this is one of them and gets nothing.

[00:58:05] Speaker 07:
It would seem the First Amendment analogy would say you have the burden on that kind of an argument.

[00:58:11] Speaker 02:
Well, let me walk you through why I think the best argument I think we have that this is more like that first category.

[00:58:17] Speaker 02:
So Rohini and Heller both emphasize that there are categories of conduct that literally involve a person bearing arms that are presumptively lawful.

[00:58:28] Speaker 02:
And presumptively usually means the plaintiff would have the burden of disproving lawfulness, essentially.

[00:58:33] Speaker 02:
So we know those categories exist.

[00:58:36] Speaker 02:
And so the question is, is this one of those categories, or is this one on which the state bears the burden of proof?

[00:58:41] Speaker 02:
And Heller, I think, is the place where the court has spoken most clearly on this.

[00:58:45] Speaker 02:
It says on two different occasions, the Second Amendment does not protect those weapons not typically possessed by law abiding citizens for lawful purposes.

[00:58:54] Speaker 02:
And the Second Amendment, right, whatever its nature, extends only to certain types of weapons.

[00:58:58] Speaker 02:
So we think that reading Heller,

[00:59:01] Speaker 02:
It's sort of fully what happens is you've got this initial burden of proving that the weapon you're you're trying to bear is protected and then and only then does the burden shift to the state.

[00:59:14] Speaker 04:
Because in Heller, right after Justice Scalia and the majority defined what an arm was, either an offensive weapon or a defense for armor, it immediately goes into a discussion of the original meaning of what an arm was, and it says that it did not include those military applications.

[00:59:32] Speaker 04:
And so there is some sense at Heller in several different places where an understanding of what the scope of the Second Amendment right is, what a bearable arm is, also involves an understanding about whether this was a weapon that was traditionally used for lawful purposes such as self-defense.

[00:59:48] Speaker 04:
I take it that's the argument that you're making, that it is wrapped up in the step one analysis as well.

[00:59:52] Speaker 02:
That's exactly right.

[00:59:53] Speaker 02:
And I think the way that Heller walks through the text of the Second Amendment makes that really clear.

[01:00:00] Speaker 02:
It walks through defining each word individually, yes.

[01:00:03] Speaker 02:
But then it says, putting all of these together, here's how we read the text.

[01:00:08] Speaker 02:
And so I think that that's really important.

[01:00:10] Speaker 02:
It's not that we're looking at the word arm in isolation or the word bear in isolation.

[01:00:14] Speaker 02:
We're looking at the text, the entire operative clause, the same way that Heller does.

[01:00:18] Speaker 06:
Before your time is up, I guess I want to see if you can summarize.

[01:00:25] Speaker 06:
If we were to vacate the decision below and remand the case with instructions to dismiss, in your view, would the dismissal be with prejudice or without prejudice?

[01:00:36] Speaker 02:
Without prejudice, Your Honor.

[01:00:37] Speaker 02:
It's an Article 3 dismissal.

[01:00:39] Speaker 02:
That's without prejudice.

[01:00:40] Speaker 02:
If the plaintiffs wanted to refile a lawsuit, procedurally, they would be able to do so.

[01:00:44] Speaker 02:
I think, you know, we might have questions about whether their waiver in this law, these specific plaintiffs, whether their waiver in this lawsuit is finding future.

[01:00:51] Speaker 06:
And if we conclude that the case is not moot,

[01:00:56] Speaker 06:
I think your view is that we would remand the case for the district court to apply, or consistent with City of New York.

[01:01:05] Speaker 06:
Is that correct?

[01:01:05] Speaker 02:
That's right.

[01:01:06] Speaker 02:
You would just follow the roadmap in City of New York, vacate the case, send it back for the district court to address whether the plaintiffs have preserved this issue, and if so, to address the merits in the first instance.

[01:01:17] Speaker 02:
I see I'm running out of time, but I just want to really hammer why this disposition is important, which is because this effective ban theory, it's brand new, we've never had a chance to litigate the factual issue below, but it is highly contestable.

[01:01:32] Speaker 02:
I mean, if you go to the website that the plaintiffs have cited several times, Blade HQ, they've got a long list of sheaths designed specifically for butterfly knives.

[01:01:41] Speaker 02:
A lot of what you're sold out right now, it's really popular.

[01:01:44] Speaker 02:
So for that reason, Your Honor, because this involves a new case with new facts and new issues, we ask this court to vacate and remand for the district court to address these issues in the first instance.

[01:01:53] Speaker 06:
Thank you.

[01:01:54] Speaker 02:
Thank you very much.

[01:01:54] Speaker 06:
I'll give you two minutes.

[01:02:02] Speaker 06:
Your minute and then one more minute.

[01:02:04] Speaker 06:
Just your minute and one more minute.

[01:02:05] Speaker 06:
Thank you very much.

[01:02:06] Speaker 06:
So it's two minutes total.

[01:02:07] Speaker 06:
Whoever's got the clock.

[01:02:09] Speaker 06:
Thank you.

[01:02:11] Speaker 03:
First, there's a question up here as to whether the state had ever conceded whether a butterfly knife is a bearable arm.

[01:02:21] Speaker 03:
They did so during the deposition of Robin Nakamini.

[01:02:26] Speaker 03:
And I don't have an ER site for that, but it's in there.

[01:02:30] Speaker 10:
And here, if the... Sorry, they conceded during a deposition?

[01:02:37] Speaker 10:
This was a 36 witness?

[01:02:40] Speaker 10:
The expert, yes.

[01:02:41] Speaker 10:
Well, no, that's actually not a 36.

[01:02:44] Speaker 10:
OK.

[01:02:45] Speaker 10:
So they had an expert who said that, OK.

[01:02:47] Speaker 10:
Yeah.

[01:02:49] Speaker 10:
All right.

[01:02:51] Speaker 03:
So we will clarify that in a supplemental letter.

[01:02:57] Speaker 10:
I just am not aware of the principle that a witness testimony is a concession by a party.

[01:03:03] Speaker 10:
But you could clarify that as well.

[01:03:05] Speaker 10:
But keep going.

[01:03:05] Speaker 03:
Yes, Your Honor.

[01:03:11] Speaker 03:
Here, if this court decides to remand, the bare minimum what needs to do is decide the threshold question of whether a butterfly knife's protected arm.

[01:03:22] Speaker 03:
That would give clarity to the trial court that assumed that a butterfly knife was protected only to uphold it during the under-intermediate scrutiny.

[01:03:36] Speaker 03:
And it likely took that course of action because

[01:03:40] Speaker 03:
It just simply knew that it was going to uphold the law under immediate scrutiny, and so it did need to engage in the heavy intellectual analysis of whether this was an arm.

[01:03:50] Speaker 03:
Now, the state's position that Bruhn somehow abrogated Heller on the issue of who bears the initial burden just simply is not correct.

[01:04:02] Speaker 03:
just on Friday, the United States Free Port Side Rahimi, and it reiterated Heller's holding that it's a presumptive protection to all bearable arms.

[01:04:14] Speaker 03:
And there's nothing in there that says that this presumption has anything to do with military application or anything like that.

[01:04:21] Speaker 03:
I mean, that's something that perhaps the state could use to rebut that presumption, but it's ultimately,

[01:04:31] Speaker 03:
The Heller is still binding and just like the court in the Second Circuit's New York v. Rifle v. Cuomo case, it should decide this issue of what is an arm and expressly find, to clarify for all the trial courts, that there's a presumptive protection to all bearable arms.

[01:04:54] Speaker 06:
Thank you.

[01:04:54] Speaker 03:
Thank you, your honor.

[01:04:56] Speaker 06:
Thank you, Mr. Beck and Mr. Swanson.

[01:04:58] Speaker 06:
We appreciate the oral argument presentations here today.

[01:05:02] Speaker 06:
The case of Andrew Teeter and James Grell versus Anne El Lopez and Darylene is now submitted and we are adjourned.

[01:05:09] Speaker 06:
Thank you.

[01:05:53] Speaker 05:
Court stands adjourned until 1.30 this afternoon.