The panel, however, sidestepped Hawaii’s invocation of Heller. First, it denied a motion by the state to remand the case back to the lower court so it could build a factual record for the Bruen test, which did not exist when the district court upheld the law. Then the panel concluded that Hawaii should have already built that record when it defended the ban in the district court since Heller already existed at that point, even though the Bruen test did not. Accordingly, Bea wrote, the state had “failed to present evidence sufficient to create a genuine issue of material fact as to whether butterfly knives are dangerous and unusual.”
From there, the panel declared that there was “no genuine issue of material fact as to whether butterfly knives are commonly owned for lawful purposes.” It cited some testimony during the lower-court trial that butterfly knives can be used in self-defense and that the knives’ use is part of a martial-arts style that originated in the Philippines. While Hawaii cited what the panel described as “some conclusory statements in the legislative history” that butterfly knives were associated with criminal activity, Bea wrote that the court gave “little weight” to those findings. “Common sense tells us that all portable arms are associated with criminals to some extent, and the cited conclusory statements simply provide no basis for concluding that these instruments are not commonly owned for lawful purposes,” he concluded.
Nor did the panel find any of Hawaii’s purported historical analogues to be convincing. The closest match, the judges said, was a 1837 Georgia law that declared no one shall “keep, or have about or on their person or elsewhere […] Bowie, or any other kind of knives.” They reasoned that it was “not apparent to us that ‘other kind[s] of knives’ would have been understood to include pocketknives.” Nor did laws banning the possession and/or carry of more eclectic stabbing implements like Arkansas toothpicks, Bowie knives, daggers, dirks, or the like persuade them because, they concluded, a butterfly knife “is clearly more analogous to an ordinary pocketknife.”