[00:00:00] Speaker 03: Please be seated. [00:00:02] Speaker 00: Okay. [00:00:03] Speaker 00: The next case on the docket, Papa versus Department of Homeland Security is submitted and we'll take up Knife Rights versus Bonta. [00:00:25] Speaker 01: Good morning. [00:00:26] Speaker 01: May it please the court, John Dillon appearing on behalf of the appellants. [00:00:31] Speaker 01: California's switchblade ban criminalizes the possession, carrying, selling, loaning, transferring, and gifting of a switchblade, a class of protected arms under the Second Amendment. [00:00:41] Speaker 01: The Supreme Court instructs us that a Second Amendment challenge begins with a threshold question. [00:00:46] Speaker 01: Does the Second Amendment's plain text cover the appellant's conduct? [00:00:51] Speaker 01: Here, that answer is simple and undisputed. [00:00:54] Speaker 01: The state has already conceded, and the Disha Court ruled that appellants are part of the people under the Second Amendment. [00:01:00] Speaker 01: And the state does not dispute that the conduct here, possessing, carrying, selling, loaning, transferring, or gifting, constitutes arms-bearing conduct. [00:01:10] Speaker 01: The state also does not dispute that switchblades fall under Heller's broad definition of arms to include weapons of offense or armor of defense, and anything worn in defense or taken or used to cast at or strike another. [00:01:27] Speaker 01: The Supreme Court has reiterated three times that the Second Amendment extends prima facie to all instruments that constitute bearable arms. [00:01:36] Speaker 01: Taken together, Heller, Bruin, Catano, and Rahimi confirm that an arm is presumptively protected by the Second Amendment's plain text regardless of whether it is common, unusual, or otherwise. [00:01:50] Speaker 01: Because this threshold question has been favorably answered, the burden then shifts to the state to justify the ban based on reference to the nation's historical tradition of arms regulations. [00:02:04] Speaker 01: And in the case of arms bans, Heller already conducted the historical tradition analysis. [00:02:10] Speaker 01: The government can only ban an arm that is not in common use for lawful purposes, or in other words, the government may only ban arms that are both dangerous and unusual. [00:02:21] Speaker 01: The in common use and dangerous and unusual inquiries are two sides of the same historical coin. [00:02:26] Speaker 04: Are you making a facial challenge to the switchblade laws? [00:02:30] Speaker 01: Yes, Your Honor. [00:02:32] Speaker 00: Can I just ask you, you characterized it as a ban. [00:02:35] Speaker 00: Is this really a ban? [00:02:37] Speaker 00: I mean, I mean other, I mean there's specific limitations on when you can possess or carry. [00:02:45] Speaker 00: a switchblade. [00:02:47] Speaker 01: Yes, it is a functional ban, Your Honor, and that's the case. [00:02:49] Speaker 00: Why did you explain that to me? [00:02:51] Speaker 01: Be glad to. [00:02:52] Speaker 01: So the prohibitions under California Penal Code sections prohibit carrying, buying, selling, loaning, transferring, or gifting a switchblade. [00:03:01] Speaker 01: So in that essence, any form of acquiring the switchblade is outlawed in California law. [00:03:07] Speaker 01: It also prohibits the possession in public in a car or vehicle [00:03:14] Speaker 01: And it also creates the possession of a switchblade as a nuisance and subject to confiscation and destruction. [00:03:23] Speaker 01: Putting all these together, it amounts to a complete ban where there's no possible legal way to acquire these switchblades in California. [00:03:33] Speaker 00: that they allow you to purchase a switchblade from out of state, put it in the trunk of your car, and bring it home to your house, and then possess and carry it in your home, right? [00:03:48] Speaker 01: No, because just by transferring it in your car, you'd be violating the law, as well as violating the nuisance ordinance of possessing it in public. [00:03:58] Speaker 00: Why is that? [00:03:58] Speaker 00: Because it only bans it. [00:04:00] Speaker 00: switchblade in certain places in the car. [00:04:04] Speaker 00: The driver's seat or the passenger's seat. [00:04:08] Speaker 00: Not the trunk, right? [00:04:09] Speaker 01: Again, realistically, how do you get the knife in your car if it's not possessed outside of the car first? [00:04:15] Speaker 01: And I guess in the hypothetical that someone went out of state to purchase the knife, then placed the knife in their car before coming into the state, and then driving to their home and entering their home without getting out of the car. [00:04:31] Speaker 01: Then it's possible that it would be legal to possess and acquire that switchblade However, I don't think that's realistically feasible and in any case there's already been at least one court that has Prosecuted the possession of switchblade within the home so in the realistic fashion there's no real way to acquire these switchblades in California without violating law in some fashion and [00:05:03] Speaker 01: So like I said, this is the in common use and dangerous and usual inquiries. [00:05:07] Speaker 04: If this is a facial challenge, you agree that the government just has to show some constitutional applications. [00:05:16] Speaker 04: And do you agree that concealed carry, there's certainly a historical tradition of regulating concealed and prohibiting concealed carry? [00:05:26] Speaker 01: No, I wouldn't concede that, Your Honor. [00:05:29] Speaker 04: I don't see any argument in your briefs that the switchblade laws are invalid in all of their applications. [00:05:39] Speaker 01: We do argue that the switchblade law is invalid in every application. [00:05:44] Speaker 04: Okay, so then why don't you show me the historical evidence on concealed carry, please. [00:05:51] Speaker 01: The historical evidence regarding all weapons of concealed carry, Your Honor, just to clarify. [00:05:59] Speaker 04: Okay. [00:06:00] Speaker 04: I'm looking at prohibitions on concealed carry for New Jersey, it's daggers and dirks, Louisiana's knives, Kansas, Florida's, everything except the common pocket knife, Tennessee, Virginia. [00:06:17] Speaker 04: You've got the Bowie knives evidence that everyone's been talking about. [00:06:20] Speaker 04: There are a lot of states that have prohibited concealed carry during the relevant time period. [00:06:28] Speaker 01: I would respectfully disagree with the relevant time period. [00:06:31] Speaker 01: The states that have imposed concealed carry restrictions on any type of knife, I'll summarize it in this fashion. [00:06:42] Speaker 01: During the colonial period, there's no ban on the possession of any kind of knife of any kind. [00:06:48] Speaker 01: Through the 1800s, there was one sales restriction in 1838 in Tennessee that prohibited the sales of Bowie knives. [00:06:55] Speaker 01: But it still allowed for the possession and carry of those knives. [00:06:59] Speaker 01: In 1881, there was another sales ban on Bowie knives in Arkansas. [00:07:07] Speaker 01: But that came well after 1870 and actually 1881. [00:07:11] Speaker 01: Now, the remaining concealed carry restrictions that were applied throughout the states, most every one of them was applied after 1870. [00:07:21] Speaker 01: They applied mainly to Bowie knives, although there were other types of knives that were described as fighting knives like Arkansas toothpicks. [00:07:32] Speaker 04: So in your view, there is no restriction, no regulation on switchblades that would ever be constitutional. [00:07:39] Speaker 04: That's what I'm hearing. [00:07:41] Speaker 01: With regard to conceal or carry? [00:07:43] Speaker 04: Well, let's do both. [00:07:45] Speaker 04: In your view, is any regulation of a switchblade ever constitutional? [00:07:52] Speaker 01: Regulation may or may not be. [00:07:53] Speaker 01: I don't have a regulation in front of me, and we're not challenging a mere regulation. [00:07:57] Speaker 01: We're challenging an outright ban, Your Honor. [00:07:59] Speaker 04: But you're saying concealed carry you think is unconstitutional. [00:08:03] Speaker 04: A prohibition on concealed carry of a switchblade is unconstitutional. [00:08:07] Speaker 04: Is that your position? [00:08:08] Speaker 01: An outright prohibition on concealed carry. [00:08:10] Speaker 01: Again, this is something we can't take the prohibition in a whole, separate it out, and only apply concealed carry. [00:08:22] Speaker 01: It's a ban on all carry. [00:08:24] Speaker 04: OK, but that's not my question. [00:08:26] Speaker 04: Is it your position that solely a concealed carry ban or switchblade knives is unconstitutional? [00:08:34] Speaker 04: Nothing else, just concealed carry? [00:08:37] Speaker 01: Again, a switchblade ban solely on concealed carry would have to be justified by the government under the historical tradition that the arm is both dangerous and unusual or not in common use. [00:08:48] Speaker 04: And in your view, it could never meet that requirement, correct? [00:08:53] Speaker 01: I believe that under the historical analysis, both the Heller's Common Use and Dangerous Unusual, and if you were to go and review all of the restrictions that were ever applied to knives in general, that there is no support for an outright ban. [00:09:08] Speaker 04: No. [00:09:09] Speaker 04: But you keep changing. [00:09:10] Speaker 04: I'm not saying outright ban. [00:09:11] Speaker 01: It's not outright ban. [00:09:11] Speaker 01: I'm saying concealed carry. [00:09:12] Speaker 01: But again, that's a hypothetical. [00:09:13] Speaker 04: So for you, no concealed carry ban would ever be constitutional because it can't meet the requirements. [00:09:19] Speaker 01: Again, the laws that were offered in support of [00:09:23] Speaker 01: concealed carry restrictions on Bowie knives and other knives during the 1800s were the same laws that were offered in New York State Rifle and Pistol Association v. Bruin to support New York's proper cause or good cause requirement. [00:09:37] Speaker 01: The court in Bruin stated that these concealed carry restrictions were not sufficient evidence to support New York's ban through their proper cause requirement. [00:09:49] Speaker 01: As such, I don't think that those same restrictions would be supportive of an outright ban on switchblades as we have before us today and also an outright ban on concealed carry hypothetical that the court offers. [00:10:07] Speaker 00: What do you make, again on the ban question, what do you make of the fact that the switchblade regulations provide a procedure for confiscating and destroying switchblades in some circumstances, but also provide for them to be returned to their lawful owners? [00:10:30] Speaker 00: That must mean that there are some people who are lawfully entitled to possess switchblades in California. [00:10:38] Speaker 01: Again the record is completely devoid of a situation like that ever happening in the history of California so again [00:10:47] Speaker 01: Theoretically, it may be possible to come up with some legitimate means. [00:10:52] Speaker 01: However, applying the law as it's written, there's no means that would allow no exception, that would allow someone to get their switchblade back. [00:11:03] Speaker 01: I mean, in fact, transferring a switchblade is illegal per the penal code. [00:11:07] Speaker 01: So just the transfer of the switchblade back to the person would arguably be illegal under the law. [00:11:18] Speaker 01: Going back to the placement of the Common Use and Dangerous and Unusual test, I stated earlier that it's two sides of the same historical coin. [00:11:28] Speaker 01: The Heller Court read the Miller decision to hold as a matter of historical understanding that the Second Amendment does not protect those weapons not typically possessed by law abiding citizens for lawful purposes. [00:11:41] Speaker 01: And then it clarified that the historical basis of the common use limitation recognized in Miller is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons. [00:11:53] Speaker 01: In other words, all bearable weapons are arms covered by the plain text of the Second Amendment and thus presumptively protected. [00:12:03] Speaker 01: And the nation's historical tradition does not necessarily protect arms that are not typically possessed by law-abiding citizens for lawful purposes. [00:12:12] Speaker 01: And the Bruin Court subsequently reaffirmed this decision in Heller that the Second Amendment protects the possession and use of weapons that are in common use at the time. [00:12:23] Speaker 01: Thus, the in common use and dangerous and unusual analysis is firmly rooted in the historical tradition. [00:12:30] Speaker 00: Do you think that's one test in common use for self-defense and dangerous and unusual? [00:12:37] Speaker 01: Yes, Your Honor. [00:12:38] Speaker 01: Like I said, it's two sides of the same coin. [00:12:40] Speaker 01: So it's two ways of looking. [00:12:42] Speaker 00: And where would you apply that? [00:12:44] Speaker 00: Would you apply that at Bruin step one or Bruin step two? [00:12:47] Speaker 01: Yes, stated this would be applied in Bruin step two historical analysis. [00:12:51] Speaker 00: Okay, because what if we were to think it should be the in common use for self-defense should be considered as part of Bruin step one as to whether or not it's a protected arm in the first place. [00:13:06] Speaker 01: As I stated earlier, Heller Court has stated that the in-common-use analysis is firmly rooted and supported by the historical tradition of banning those weapons that are both dangerous and unusual. [00:13:21] Speaker 00: Now, with regard to the in-common... But didn't Brune itself assess at [00:13:30] Speaker 00: It's first step, not the second step, whether handguns were in common use for self-defense. [00:13:38] Speaker 01: Yeah. [00:13:38] Speaker 01: Bruin did have a statement that said it is undisputed that handguns are commonly used for self-defense. [00:13:45] Speaker 01: But what that statement did was conclude in summary fashion that there was nothing in the historical phase of the inquiry that would have defeated plaintiff's claims based on who they were or what weapon they wanted to carry. [00:13:56] Speaker 00: Let me ask you then. [00:14:00] Speaker 00: What evidence do you have that switch blades are in common use today for self-defense? [00:14:08] Speaker 01: Again, because the common use analysis puts the burden on the state, it is the state's burden to show that they're not in common use or both dangerous and unusual. [00:14:20] Speaker 01: However, we did provide the only evidence in the record regarding commonality. [00:14:27] Speaker 01: So we've appellant stated that and showed through our record evidence that they're numerically common as they're lawfully owned by millions of Americans and sold in thousands of varieties across major retailers. [00:14:40] Speaker 01: We've showed that they're jurisdictionally common. [00:14:41] Speaker 04: But how is that consistent with McDonald's statement that states have the right to devise their own solutions to social problems that meet their own local needs and values? [00:14:56] Speaker 01: Yeah, states do have the ability to enforce their own regulations. [00:15:00] Speaker 01: However, just like all other constitutional rights, there is a minimum standard, a nationwide standard that the Second Amendment imposes on all states that every state must meet, and that is to prevent any type of outlier. [00:15:17] Speaker 01: So when Heller [00:15:20] Speaker 01: considered the DC's ban on handguns. [00:15:24] Speaker 01: They stated that handguns are a product of the people nationally. [00:15:29] Speaker 01: They considered their lawful use nationally. [00:15:32] Speaker 01: They didn't consider the common use of handguns in DC. [00:15:36] Speaker 01: At that point, DC had already banned handguns for a number of years. [00:15:40] Speaker 01: So there would be no common use of handguns in DC. [00:15:44] Speaker 01: So applying a common use standard with [00:15:48] Speaker 01: Relegated to only the state issuing the ban would not be consistent with heller on the flip side But are you doing the same thing you're saying here are jurisdictions that allow it and and haven't we? [00:16:00] Speaker 04: basically rejected that that numerosity approach to showing common use and [00:16:07] Speaker 01: Well, Duncan rejected the numerosity, and it focused its rejection based off the fact that the magazines in questions, they described them as accessories. [00:16:18] Speaker 01: They weren't firearms, according to the court in Duncan. [00:16:21] Speaker 01: And because of that, they were not going to base the popularity of that non-firearm accessory and give it any constitutional merit. [00:16:30] Speaker 01: I would argue, however, that [00:16:33] Speaker 01: Heller and Bruin have both demanded that that is the test to be applied. [00:16:39] Speaker 01: The common use, in common use or in other words saying not both dangerous and unusual. [00:16:45] Speaker 01: If something is common it cannot be unusual and therefore it's protected. [00:16:50] Speaker 00: Didn't we already hold in U.S. [00:16:53] Speaker 00: versus Alanis that the in common use test falls under Bruin's first step? [00:16:59] Speaker 01: I respectfully know Alanis put I wrote down one sentence when it summarized the threshold textual analysis being in the first the common use test being in the threshold textual analysis but it explicitly stated that it was not deciding that [00:17:16] Speaker 01: and that it would assume step one threshold analysis in that case. [00:17:22] Speaker 01: Duncan came after and affirmed, while it affirmed that Alanis was good law, it also stated that there was no consensus in the Ninth Circuit with regard to where in common use danger and unusual applies, whether it's the threshold inquiry or the historical justification. [00:17:41] Speaker 01: And it also went on to address [00:17:45] Speaker 01: the appellant's commonality argument under the historical analysis. [00:17:55] Speaker 01: So again, I'll go back to the commonality here. [00:17:58] Speaker 01: We've shown that they're numerically common, jurisdictionally common, and categorically common, as they're no different from any other folding pocket knife that are legal to purchase, own, carry, and possess in nearly every state in this country. [00:18:12] Speaker 01: These are pocket knives, and the state has, you know, their experts have described them as such. [00:18:20] Speaker 00: Well, they have a specific definition in the statute as to what a switchblade is. [00:18:26] Speaker 01: Yeah, and even in that definition, it describes them as a knife with the appearance of a pocket knife. [00:18:31] Speaker 00: And under any definition- But they have this spring feature or something. [00:18:35] Speaker 01: Yeah, but under any definition of pocket knife, a switchblade falls under that. [00:18:39] Speaker 01: It is a knife that folds where the blade is enclosed in the handle of the knife, and it is carried in the pocket. [00:18:55] Speaker 01: So going back. [00:18:55] Speaker 00: Theorists of the pocket knife that includes a spring blade knife, snap blade knife, gravity knife, or any other similar type knife. [00:19:05] Speaker 00: So it's distinct from a regular pocket knife. [00:19:11] Speaker 01: It's distinct in the sense that it has an extra spring, but the function. [00:19:16] Speaker 00: Which is what the feature is. [00:19:18] Speaker 00: That's the feature that makes it particularly dangerous in the eyes of California. [00:19:24] Speaker 01: Honestly, they've never actually argued that the spring itself makes the knife more lethal or dangerous, in fact. [00:19:30] Speaker 00: But they don't regulate, and the state does not regulate pocket knives in the manner in which it regulates switch blades. [00:19:37] Speaker 00: Yeah. [00:19:39] Speaker 00: You concede that? [00:19:41] Speaker 01: Regular pocket knives are not, folding manual or assisted opening pocket knives are not prohibited under California law, yes. [00:19:47] Speaker 02: Council, if I could ask you a question on that. [00:19:53] Speaker 02: Why is it not true that a switchblade knife, whether opened to show the blade on a push of a button or one based on [00:20:07] Speaker 02: gravity that comes with a flick of the wrist. [00:20:12] Speaker 02: Why isn't that more dangerous than a normal pocket knife? [00:20:18] Speaker 02: Because the blade can be deployed almost instantaneously. [00:20:26] Speaker 02: This gives no warning to a person who might be attacked. [00:20:34] Speaker 01: Yes, appellants have shown in the record that the [00:20:37] Speaker 01: Speed of opening a switchblade is no different than the speed of opening an assisted opening blade or assisted opening knife that is legal in California. [00:20:46] Speaker 01: We have video demonstration showing switchblade versus assisted opening. [00:20:50] Speaker 01: They open at the same time. [00:20:52] Speaker 01: In fact, the speed of opening has never been argued by the state on this record that that is what makes it more lethal or dangerous in any way. [00:21:01] Speaker 01: The state argues that these arms are not, quote, suitable for self-defense. [00:21:08] Speaker 01: And in support of that claim, they offer expert testimony who quite literally just express his opinion that he prefers to use a fixed blade knife as opposed to a switch blade knife in self-defense. [00:21:21] Speaker 01: His critiques of switchblades don't ever claim that a switchblade is more dangerous to the public or dangerous to the public at large. [00:21:29] Speaker 01: There's no claim that there's any type of uniquely dangerous feature of a switchblade knife that causes devastating harm. [00:21:38] Speaker 01: There's no claim or evidence that switchblades are particularly capable of unprecedented lethality. [00:21:44] Speaker 01: There's no evidence or claim that switchblades pose exceptional dangers to innocent civilians. [00:21:50] Speaker 01: The state's own expert admits that switchblades are not any public threat. [00:21:56] Speaker 01: There's also no claim or evidence that switchblades are associated with mass casualty events. [00:22:01] Speaker 01: No evidence or claim that switchblades facilitate criminal violence at higher rates. [00:22:05] Speaker 01: There's no data suggesting that they are disproportionately used in crime. [00:22:09] Speaker 01: And there's no claim or evidence that a switchblade has ever even been used in a crime in California in this record. [00:22:17] Speaker 04: Let me ask you, you said manual knives and regular pocket knives are not covered by this switchblade law. [00:22:26] Speaker 04: Do you agree? [00:22:27] Speaker 04: What about manual switchblades? [00:22:30] Speaker 01: There is no such thing as a manual switchblade. [00:22:32] Speaker 04: You don't think they exist? [00:22:34] Speaker 01: They factually do not exist. [00:22:36] Speaker 01: The reason a switchblade is [00:22:39] Speaker 01: defined as a switchblade is because it opens with the push of a button with the added spring. [00:22:44] Speaker 01: A manual switchblade, if I am interpreting the court correctly, would mean that you have to manually open the knife. [00:22:51] Speaker 01: That would just fall under the general definition of manually opening, folding pocketknife. [00:22:57] Speaker 04: Okay, so folding knife, you agree, is not covered. [00:23:00] Speaker 04: by this provision of generally holding swiss army utility knife not covered so this by any type of mechanism whatsoever you understand that to me like a spring [00:23:13] Speaker 04: That's the language from the definition of switchblade knife from penal code 17-235. [00:23:19] Speaker 01: Yes, the addition to a spring when it comes to switchblade knives, but switchblade knives also include the definitions of gravity knives and what are commonly referred to as butterfly knives as well under the definition. [00:23:32] Speaker 01: So it prohibits all of those. [00:23:37] Speaker 01: A gravity knife or a butterfly knife doesn't have an extra spring. [00:23:43] Speaker 01: but they're still regulated as switchblades and prohibited under California law. [00:23:51] Speaker 01: And notably, the ban on butterfly knives was ruled unconstitutional in Teeter, however that was vacated. [00:24:03] Speaker 00: Is this switchblade knife suitable for use in self-defense? [00:24:10] Speaker 01: Yes, Your Honor. [00:24:11] Speaker 01: The state's expert admitted that switch blades can be used for self-defense and even any weapon can be used in self-defense. [00:24:20] Speaker 01: Again, the text of the Second Amendment, Heller defined to keep and to bear when he was addressing what was meant in the scope of the Second Amendment. [00:24:33] Speaker 01: to keep the court defined as to have a weapon or to retain possession of, to bear meant the practice of carrying a weapon to be ready and in case of conflict with another person. [00:24:49] Speaker 01: Both of these textual definitions under the Second Amendment's text [00:24:54] Speaker 01: Define or necessarily require that mere possession is all that's required under the textual threshold to be covered by the Second Amendment so that you know the requirement of the state offers [00:25:09] Speaker 01: that we have to show that they're commonly used in actual self-defense scenarios as just not there. [00:25:16] Speaker 01: And it's never been required by the Supreme Court. [00:25:19] Speaker 01: In Heller, the court never required that the plaintiff's or appellant's challenge or offer proof of how many times handguns were ever used in self-defense. [00:25:30] Speaker 01: It was assumed to common. [00:25:32] Speaker 01: Also in Katano, stun guns, it was never considered how often they were used in self-defense. [00:25:39] Speaker 01: It was the fact that they were merely possessed for the purpose of self-defense and other lawful purposes that allowed them to be protected under the plain text of the Second Amendment. [00:25:54] Speaker 01: I'd like to also point the court to the fact when we're discussing the placement of the threshold, I know the state and the court has mentioned the Alanis and Duncan case. [00:26:05] Speaker 01: I'd also like to point the court to the USV Perez Garcia. [00:26:10] Speaker 01: In that discussion of Bruin's application of the historical record, Perez Garcia references the in common use and dangerous and unusual standard as [00:26:19] Speaker 01: part of Bruin's historical tradition analysis at least two separate times. [00:26:24] Speaker 01: The references are at 96, F4, 1166, pages 1177 and 1191. [00:26:31] Speaker 01: There, the Perez-Garcia Court treated dangerous and unusual as part of rebutting the presumptive protection of the Second Amendment or as part of the so-called step two historical analysis. [00:26:45] Speaker 00: Okay, counsel, you're... [00:26:47] Speaker 00: Well over your time, and we've been peppering you with questions, so I let you go because of that. [00:26:54] Speaker 01: May I still get some time for rebuttal? [00:26:56] Speaker 00: Yes. [00:26:56] Speaker 00: Thank you. [00:26:56] Speaker 00: You'll get a couple minutes. [00:27:11] Speaker 03: Good afternoon, and may it please the court. [00:27:14] Speaker 03: Katrina Yuhara for the California Attorney General. [00:27:18] Speaker 03: California's long-standing restriction on switchblade knives addresses only the most dangerous of those knives, those with blades two inches or longer and that do not have a safety mechanism. [00:27:29] Speaker 03: The district court correctly held that plaintiffs failed to satisfy their burden at Bruin's threshold stage because they failed to prove that the subset of knives at issue are in common use for self-defense. [00:27:41] Speaker 04: Can I ask you, there's a lot of language in Heller and Donald and even in the Ninth Circuit case, FIAC, that it has to be possessed for lawful purposes. [00:27:53] Speaker 04: And in some instances I agree they say like self-defense or most notably for self-defense. [00:28:00] Speaker 04: But why should the common use be limited to self-defense rather than lawful purposes? [00:28:06] Speaker 03: So we certainly do get the for lawful purposes language from cases like Heller and cases that specifically predate the Bruin framework. [00:28:15] Speaker 03: Bruin itself, though, uses the phrase in common use for self-defense. [00:28:19] Speaker 03: And when Bruin uses that language, it uses it at the first step of the textual analysis before it finds that the petitioners in that case, that their claim was presumptively protected under the Second Amendment. [00:28:31] Speaker 03: And I think a finding that, or sorry, I think that- [00:28:37] Speaker 04: I'll say, you know, we have this Ninth Circuit case that says commonly possessed by law-abiding citizens for lawful purposes. [00:28:43] Speaker 04: That's Fioc v. Sunnyvale. [00:28:45] Speaker 04: Is that no longer a good law then? [00:28:47] Speaker 04: Your Honor. [00:28:48] Speaker 04: Are you asking us to? [00:28:51] Speaker 03: So we don't think this court needs to overrule Fioc v. Sunnyvale. [00:28:55] Speaker 03: And we think Fioc is actually particularly helpful because when we're also discussing the dangerous and unusual analysis, Fioc actually puts dangerous and unusual at the first step of the Bruin framework. [00:29:07] Speaker 03: Now, but returning back to common use, Your Honor, not only does Bruin place in common use for self-defense at the first step of the analysis, this court's precedent in United States for Solanus, which Judge Wardlaw referred to, also place common use at the first step of the analysis. [00:29:25] Speaker 03: And when it does, it uses the phrase in common use for self-defense. [00:29:31] Speaker 03: that finding that common use is at the step one of the inquiry and that it's for Whether or not an arm is in common use for self-defense This is consistent with other circuits as well there are five other circuits to address this issue and they've all put common use at the first step of the analysis and similarly the circuits who have addressed whether or not common use is for lawful purposes and [00:29:53] Speaker 03: as opposed to for self-defense. [00:29:55] Speaker 04: Can I ask you, why does common use require showing the weapon was actually used in a specific incident for self-defense? [00:30:02] Speaker 04: Because you have all this language about, you know, the Second Amendment does not protect those weapons, not typically possessed by law-abiding citizens. [00:30:10] Speaker 04: Rights possessed carry weapons in case of confrontation. [00:30:13] Speaker 04: None of those actually say you have to actually have used it in self-defense or need evidence. [00:30:18] Speaker 04: that it was actually used in self-defense. [00:30:20] Speaker 03: I think we get the requirement that this weapon needs to be actually used for self-defense from that language, whether or not a weapon is in common use for self-defense. [00:30:29] Speaker 03: Now, I think in Heller and in Bruin, in some ways the Supreme Court has had it easy. [00:30:34] Speaker 04: But they say possessed. [00:30:36] Speaker 04: I mean, if you look at Fioc, if you look at Heller, they say possessed. [00:30:43] Speaker 04: I mean, I agree with a lot of these cases. [00:30:44] Speaker 04: There's a lot of different language. [00:30:46] Speaker 04: But they clearly do say possessed for lawful purposes and not just used. [00:30:54] Speaker 03: I understand your honor's concern with the varying language that the Supreme Court has used to describe this. [00:31:00] Speaker 03: But I think Bruin really just sets the rule for us. [00:31:04] Speaker 03: And that's in common use for lawful self-defense. [00:31:07] Speaker 03: And the easiest way to show that is to show that this weapon has actually been used for lawful self-defense and that it's useful for self-defense. [00:31:16] Speaker 03: And that language that requires a weapon to be useful for self-defense, we also get that analysis from Heller. [00:31:23] Speaker 03: Heller spends pages discussing why handguns are the quintessential self-defense, or sorry, why they're the self, the quintessential self-defense weapon. [00:31:33] Speaker 03: And our usefulness analysis is an extension of that. [00:31:37] Speaker 04: And what's the time period of that actual use in self-defense? [00:31:42] Speaker 04: What's the time period that you have to show that? [00:31:45] Speaker 03: That's a great question, Your Honor. [00:31:46] Speaker 03: I don't think courts have identified. [00:31:48] Speaker 00: I think they've used the word today. [00:31:51] Speaker 00: Yes. [00:31:52] Speaker 00: commonly used in self-defense today. [00:31:56] Speaker 03: Yes, there's certainly also language that says in common use for self-defense today. [00:32:02] Speaker 00: And is there evidence in the record on that as to switchblades? [00:32:09] Speaker 03: So your honor just heard from my colleague a moment ago who just pointed out that the only evidence in this record of common use for self-defense are sales figures and ownership statistics that point to the number of switchblades in circulation. [00:32:24] Speaker 03: And as Judge Cole alluded to, we know that's simply not the test for common use. [00:32:31] Speaker 03: And Duncan expressly rejects that test for common use. [00:32:34] Speaker 03: You know, Duncan and other opinions in the circuit have noted that a numerical numbers only approach to common use is circular at the end of the day. [00:32:47] Speaker 03: It suggests that the state may only restrict a particular weapon at the beginning of its use when numbers in circulation are low. [00:32:55] Speaker 03: And that actually runs counter to our nation's history of firearm restrictions. [00:33:01] Speaker 03: And the sales figures that plaintiffs do provide have nothing to do with the particular subset of switchblade knives at issue in this case here. [00:33:09] Speaker 03: They're about switchblade knives generally. [00:33:11] Speaker 03: And most of all, that evidence tells us nothing about whether or not the subset of knives at issue in this case are in common use for self-defense. [00:33:19] Speaker 00: And if they're not, then they would not be protected by the Second Amendment? [00:33:25] Speaker 00: That's correct. [00:33:25] Speaker 00: They're not presumptively protected under the Second Amendment's tax. [00:33:28] Speaker 00: I think Judge Gould had a question or has a question. [00:33:33] Speaker 02: I think I was just coughing. [00:33:35] Speaker 00: Oh, OK. [00:33:36] Speaker 04: Sorry. [00:33:37] Speaker 04: Can you address in-rate SC? [00:33:40] Speaker 03: I'm sorry which case is that your honor? [00:33:42] Speaker 04: That is the California Court of Appeal case that said that these laws apply to possession in the home actually in someone's pants pocket. [00:33:50] Speaker 03: Yes your honor and that is a old case. [00:33:54] Speaker 03: We don't have... It's still a good law correct? [00:33:56] Speaker 03: It's not been vacated? [00:33:58] Speaker 03: Not to my knowledge your honor. [00:34:00] Speaker 03: Okay. [00:34:01] Speaker 03: And so sort of returning back to the common use test here, plaintiffs pushed two other versions of common use that they believe this court should adopt. [00:34:09] Speaker 03: They first endorsed a categorical approach to common use, and that's where they suggest that because the broader category of folding pocket knives are common, that they must be in common use for lawful self-defense. [00:34:23] Speaker 03: But we just heard a moment ago that plaintiff conceded that folding pocket knives [00:34:29] Speaker 03: is a broader category and switchblades certainly fall in that, but folding pocket knives are perfectly legal to own in California. [00:34:37] Speaker 03: California restricts only knives that have very specific characteristics and those are ones with blades two inches or longer and don't have a safety mechanism. [00:34:47] Speaker 03: And so there's a whole host of other knives, folding knives, [00:34:52] Speaker 04: What do you switch I guess my my my concern about the definition it says that it basically releases by any type of mechanism whatsoever which seems kind of broad and says released by the weight of the blade. [00:35:07] Speaker 04: I mean, that seems like that could potentially include manual opening if you're doing by the weight of the blade. [00:35:14] Speaker 03: Certainly, Your Honor, and maybe by the push of a finger or something like that. [00:35:18] Speaker 03: I think part of the reason the statute is so broad is the statute was passed 68 years ago, right when these knives were starting to [00:35:25] Speaker 03: circulate in public consciousness and so it's a broad definition that's meant to encompass the different varying versions of switchblade knives and we'll turn to our analogs in a moment but we see the same concern in our historical analogs where the laws define the different types of historical impact weapons quite broadly to make sure that they encompass all those different versions and sort of the newest, latest and greatest versions of those weapons. [00:35:55] Speaker 03: Your honor, I also want to address plaintiff's jurisdictional approach to common use, that because switchblades are legal in different jurisdictions, that must mean that they're legal here. [00:36:05] Speaker 03: And on this issue, we simply agree with the district court. [00:36:09] Speaker 04: Other jurisdictions' laws are irrelevant, and they have no bearing on whether or not the regulated switchblades... Could you address some of your arguments for why switchblades don't have the character of self-defense? [00:36:21] Speaker 04: It seemed like they applied handguns, like you need training, you could accidentally shoot or harm yourself, there's a psychological barrier to using it, safety issues. [00:36:35] Speaker 04: Tell me why they don't have the character of a self-defense weapon. [00:36:38] Speaker 03: Certainly your honor and I want to first start by saying that this is not an issue for which we bear the burden It's plaintiffs a burden to show that these are in common use and are useful for self-defense But all of this is to say that our expert concluded that most people would not be able to use a switchblade effectively for self-defense [00:36:59] Speaker 03: And there's a few things that get specifically to knives in general, specifically that in a high generalized close combat scenario, which is with a handgun, you can shoot from a distance, of course, that you would require the slashing and targeting of specific nerves and specific ligaments for that knife to be effective for self-defense. [00:37:25] Speaker 03: And that makes it quite different. [00:37:26] Speaker 03: The training is quite extensive. [00:37:28] Speaker 03: And our self-defense expert also speaks to... Do you think that these switchblades are deadly weapons? [00:37:36] Speaker 03: Oh, yes, Your Honor. [00:37:38] Speaker 04: And why is that? [00:37:40] Speaker 03: They're deadly and lethal weapons, very consistent with our historical analogs. [00:37:44] Speaker 03: You know, when the knife circuit was discussing Bowie knives, the knife circuit made the observation that those knives had long, thin blades, and that made them less useful for self-defense. [00:37:57] Speaker 03: And here we contend that these knives with blades that are two inches or longer are also similarly dangerous. [00:38:02] Speaker 04: Can I ask you about the historical analogs? [00:38:04] Speaker 04: So it seems like we have to mix and match them. [00:38:07] Speaker 04: We have to look at the ones for carry. [00:38:09] Speaker 04: We have to look at the ones for possession. [00:38:11] Speaker 04: We have to look at the ones for sale. [00:38:14] Speaker 04: We have to look at the ones for forfeiture, surrender. [00:38:17] Speaker 04: Is there any precedent for doing that kind of combination of analogs? [00:38:24] Speaker 03: Your honor, so our historical laws certainly address kind of a statutory regime. [00:38:29] Speaker 03: There's many different ways that these historical impact weapons were regulated. [00:38:35] Speaker 03: But I think the best precedent for this court to turn to is Rahimi. [00:38:39] Speaker 03: So Rahimi instructs us to consider, quote, whether the challenge regulation is consistent with the principles that underpin our regulatory tradition, end quote. [00:38:48] Speaker 03: And we think that's certainly the case here. [00:38:50] Speaker 03: Rahimi itself relied on surety laws and prohibitions on going armed in public. [00:38:55] Speaker 03: And the court recognized in Rahimi that those laws were by no means identical to the federal domestic violence restraining order prohibition. [00:39:04] Speaker 03: And, you know, the court doubled down that those laws didn't need to be identical because that federal prohibition fit neatly within the tradition that the surety and going armed laws represent. [00:39:14] Speaker 03: So I don't think your honors need to get too caught up on what the specifics of each law specifically did. [00:39:21] Speaker 03: It's important that this court look to the underpinnings and the general principle. [00:39:26] Speaker 03: And here, we argue that [00:39:29] Speaker 03: California's restrictions have effectively the same sort of why as the historical analogs. [00:39:35] Speaker 03: And the overarching tradition that we identify is our nation's historical tradition of regulating dangerous and deadly impact weapons that are susceptible to criminal misuse. [00:39:46] Speaker 03: And so here, like our historical analogs, the switchblade knife saw an influx of these. [00:39:51] Speaker 03: Let me ask you. [00:39:51] Speaker 04: In Bruin, they said three colonial historical analogs. [00:39:57] Speaker 04: They doubted whether that would be enough. [00:39:59] Speaker 04: And for sale, we really just have two, Tennessee and Arkansas. [00:40:03] Speaker 04: And they're not from the colonial period. [00:40:05] Speaker 04: They're from 1881, 1838. [00:40:08] Speaker 04: Why should those be enough? [00:40:10] Speaker 03: Well, Your Honor, that's only the case if we're looking specifically at bowie knife restrictions. [00:40:14] Speaker 03: You know, we have analogs that range much further, specifically when you look at some of the older impact weapons, like clubs, like bludgeon, some of those laws go back quite a bit earlier. [00:40:25] Speaker 03: I think our earliest law is from 1788. [00:40:28] Speaker 03: And I think rather than focus on the Bowie knife, which is the one bladed knife in our tradition, I think we need to look at it. [00:40:35] Speaker 04: But you would agree, let's say you go to 17, I can't recall what year you said, I mean knives were not necessarily treated the same at that time as a club, were they? [00:40:46] Speaker 03: Certainly not your honor, but they were impact weapons with concerns about concealability and they were closely associated with criminal use. [00:40:55] Speaker 03: And that's why the switchblade joins this line of other historical impact weapons that had these dangerous propensities and then were targeted by legislatures. [00:41:04] Speaker 03: And so the switchblade knife in particular saw an influx of use when young soldiers were returning from World War II. [00:41:12] Speaker 03: And with them, when they came back home from Europe, they brought those knives with them. [00:41:15] Speaker 00: Do you know why that was? [00:41:17] Speaker 00: I know the regulations are recent, but do we know why that was when they became more common? [00:41:23] Speaker 03: That's a great question. [00:41:24] Speaker 03: I think the earliest versions of switchblades actually go back to Italy and go back to Europe. [00:41:30] Speaker 03: And so when they were in service in World War II in those different countries, that's I think when those knives came back to the, or came to the United States. [00:41:39] Speaker 03: And so once those knives came back to the United States, they became quickly associated with juvenile crime. [00:41:47] Speaker 03: And as a result, California and many other states stepped in to restrict them. [00:41:51] Speaker 03: I believe it's a total of 20 states that restricted them before the federal government did a few years later. [00:42:06] Speaker 03: At step one, this court can simply affirm the district court's judgment, because plaintiffs haven't provided evidence that the subset of knives at issue are in common use for self-defense. [00:42:18] Speaker 04: Can I ask you, let's go back to NRA SC, because that does give me some pause. [00:42:23] Speaker 04: Section B of the statute just prohibits every person who carries the switchblade knife upon the person. [00:42:33] Speaker 04: Yes, Your Honor. [00:42:34] Speaker 03: Where do you see that the home is excluded? [00:42:39] Speaker 03: We don't, Your Honor, and I think in Ray, C is a very strange case. [00:42:44] Speaker 04: And I think when we look at the... Wait, so you're agreeing that in the home is prohibited then? [00:42:51] Speaker 04: If you're saying you don't see any way to exclude in the home, [00:42:57] Speaker 04: The language is every person who does any of the following with a switchblade knife having a blade two or more inches in length is guilty of a misdemeanor. [00:43:07] Speaker 04: A, possesses the knife in the passenger's or driver's area of any motor vehicle in any public place or place open to the public. [00:43:14] Speaker 04: B, carries the knife upon the person. [00:43:16] Speaker 04: C, sells, offers for sale, exposes for sale, loans, transfers or gives the knife to any other person. [00:43:23] Speaker 04: I don't see how the home is excluded there. [00:43:25] Speaker 03: Yes, Your Honor, that is certainly our position. [00:43:28] Speaker 04: So the home, if you carry the knife upon your person in your home, you will have been committing a misdemeanor in this case? [00:43:37] Speaker 03: No, Your Honor, we think these knives, you are able to possess them in the home for self-defense. [00:43:42] Speaker 04: But where in the statute does it say that? [00:43:45] Speaker 04: Because I don't see that in the language there. [00:43:47] Speaker 03: It doesn't say that explicitly, Your Honor, but Section B carries the knife upon the person. [00:43:52] Speaker 03: We take that to be open and concealed carry outside of the home. [00:43:55] Speaker 04: Wow, where do you see that language? [00:43:59] Speaker 04: Carries a knife upon the person? [00:44:01] Speaker 04: Yes, in subsection B. No, but I'm saying where do you see except when you're outside in the public? [00:44:09] Speaker 04: Where is that? [00:44:10] Speaker 03: I think that's implied by the fact of the nature that it's a carry restriction and the fact that home isn't explicitly mentioned here. [00:44:17] Speaker 03: Why? [00:44:17] Speaker 04: There are public carry and concealed carry restrictions. [00:44:20] Speaker 04: Why is that understood that that's a public carry restriction? [00:44:24] Speaker 03: Your honor, that's our understanding and interpretation of this statute. [00:44:29] Speaker 03: And I think your honor is getting to attention in this statute generally. [00:44:32] Speaker 03: And you see this both in the definition and in the actual 21-510 section, which is that this law was written 68 years ago. [00:44:43] Speaker 03: And they were trying to get every conceivable version of this type of knife, which was still developing. [00:44:52] Speaker 03: primarily used in juvenile crime. [00:44:54] Speaker 03: It was a fighting knife, offensive knife. [00:44:57] Speaker 03: And so I think in sections A, B, and C, the legislature was specifically targeting that use by juveniles. [00:45:08] Speaker 03: And those fights were happening supposedly and allegedly on the streets. [00:45:15] Speaker 03: And your honor is now, if I could return back quickly to our historical analogs. [00:45:22] Speaker 03: I think it's important to underline why this court doesn't need to look only to Bowie knife restrictions. [00:45:29] Speaker 03: So all of our analogs, and many of them were credited in Duncan. [00:45:32] Speaker 03: It's not just the Bowie knife restrictions. [00:45:34] Speaker 03: We also have restrictions on clubs, budgets, slung shots, sandbags, and [00:45:41] Speaker 03: Many of those are also mentioned by name in the Duncan opinion. [00:45:45] Speaker 03: And all of those analogs have one thing in common, and that's that they were the choice of criminals and that they were impact weapons that were deadly and lethal and could do so silently. [00:45:57] Speaker 03: And only after those weapons began to proliferate in crime and in use did legislatures turn to restrict them. [00:46:06] Speaker 03: Now, Your Honors, this is in many ways a straightforward case. [00:46:11] Speaker 03: At step one, plaintiffs simply haven't met their burden of establishing that the subset of knives at issue are in common use for self-defense. [00:46:20] Speaker 03: They concede it as much that all they present is sales estimates and ownership statistics. [00:46:28] Speaker 03: They don't provide this court with a single instance of those knives being used for self-defense or show that they're particularly useful for self-defense. [00:46:36] Speaker 03: On that issue alone, this court can and should affirm the district court's ruling. [00:46:41] Speaker 03: But even if this court chooses to proceed to step two, [00:46:44] Speaker 04: What should we make of the Supreme Court of Georgia saying that banning the possession, carrying in sale of Bowie knives was inconsistent with the Second Amendment and only allowing the concealed carry portion to be upheld? [00:47:02] Speaker 04: What should we make of that? [00:47:03] Speaker 03: Your honor gets to sort of attention with these laws. [00:47:06] Speaker 03: And it's something that Justice Barrett and Justice Sotomayor have discussed kind of in detail in the Rahimi concurrences, which is that historical analogs are helpful to the extent that we find an underlying historical principle that helps us tell if today's law is consistent with that tradition. [00:47:23] Speaker 03: But historical laws also don't necessarily tell us where the constitutional floor or ceiling is. [00:47:29] Speaker 03: And this case is about that, right? [00:47:32] Speaker 03: And so even if this court does choose to proceed to step two, and whether that's by a finding that the particular knives are arms or simply by out of an abundance of caution moves to step two, the state has met its burden of establishing that California switchblade restrictions is consistent with the nation's history and tradition of regulating particularly dangerous and deadly impact weapons that are susceptible to criminal misuse. [00:48:01] Speaker 03: Thank you. [00:48:03] Speaker 00: Your counsel. [00:48:05] Speaker 00: You can have a couple minutes. [00:48:08] Speaker 01: Thank you. [00:48:09] Speaker 01: I'll try to keep under the time this time. [00:48:13] Speaker 01: So first, addressing the state's claim that Bruin put this firmly in the threshold analysis. [00:48:19] Speaker 01: I want to go back to that comment, the one sentence claim under Bruin. [00:48:25] Speaker 01: It's our position that Bruin was literally just disposing of an issue that was not in dispute in the case of Bruin. [00:48:32] Speaker 01: And this is evidence from the court's final sentence in that relevant passage. [00:48:36] Speaker 01: We therefore turn to whether the plain text of the Second Amendment protects the plaintiff's proposed course of conduct, carrying handguns publicly for self-defense. [00:48:46] Speaker 01: Far from implying that the in common use test applies at the threshold plain text phase of the inquiry, Bruin refutes the very argument. [00:48:55] Speaker 01: The court resolved entirely the question of whether the ARMA issue in that case were protected by the Second Amendment, not just presumptively protected under the plain text. [00:49:06] Speaker 01: Bruin does not say that handguns are prima facie covered by the Second Amendment as a matter of plain text. [00:49:11] Speaker 01: It says that they are protected, period. [00:49:14] Speaker 01: And the conclusion is only possible because the Bruin Court resolved the issue conclusively with respect to text and history. [00:49:23] Speaker 01: So Bruin did not put in common use in the textual analysis. [00:49:28] Speaker 01: Second, the state claims that California only bans knives or blades with two inches or longer and don't have a safety mechanism. [00:49:36] Speaker 01: But we know that that's not true because there are many manual knives that are over two inches with a blade length and don't have a safety mechanism in the blade. [00:49:49] Speaker 01: It goes, specifically goes after switch blades that are the standard. [00:49:55] Speaker 01: This, under two inches, the only really reason that switch blades exist under two inches is in order to comply with the law. [00:50:02] Speaker 01: And I'd also argue that switch blades are not defined as, a knife with a blade less than two inches is not defined as a switch blade under the law. [00:50:13] Speaker 01: Also, with regard to suitability, Heller already talked about all the many reasons why a civilian may prefer a handgun. [00:50:19] Speaker 01: in home defense, and then it explicitly stated, whatever the reason, handguns are the most popular weapon chosen by the Americans for self-defense in the home, and a complete prohibition of their use is invalid. [00:50:31] Speaker 01: That was at page 629. [00:50:33] Speaker 01: So it dismissed all of these suitability reasons for training what the expert believes is the best use. [00:50:44] Speaker 01: If we were to apply this, then bolt-action rifles, lever-action rifles, many shotguns would not be protected under the plain text Second Amendment because they're not commonly used in self-defense and that just would completely flip the Second Amendment over. [00:51:03] Speaker 00: So hunting weapons would not be commonly used in self-defense. [00:51:08] Speaker 01: Yeah, so weapons that have been unanimously and universally accepted as protected by the Second Amendment wouldn't be protected because they're not commonly used in self-defense. [00:51:19] Speaker 01: And that just doesn't work with the precedent that we have. [00:51:24] Speaker 00: All right. [00:51:25] Speaker 00: Very interesting. [00:51:26] Speaker 00: Thank you. [00:51:27] Speaker 00: Thank you both for your excellent argument. [00:51:30] Speaker 00: I also want to thank all the entities that submitted amicus briefs to assist us in this analysis, including Everytown Law and a brief written by Bill Taylor and the brief by Clement and Murphy written by Erin Murphy. [00:51:50] Speaker 00: Thank you very much for your helpful [00:51:53] Speaker 00: writings, briefings in this case. [00:51:56] Speaker 00: And Knife Rights versus Bonta will be submitted and this session of the court is adjourned for today.