-: SJC-13432.
Commonwealth v. David E. Canjura.
-: Okay, Attorney Gerber, whenever you're ready.
-: Good morning, your honors, and may it please the court.
Kaitlyn Gerber, on behalf of David Canjura.
This case presents a Second Amendment facial challenge
to the ban on carrying a switchblade
or spring-assisted knife under Section 10B
of the General laws chapter 269.
Now, our analysis in this case is guided primarily
by the two-pronged test articulated
by the U.S. Supreme Court in Bruen.
Prong one asks whether the conduct in question
falls within the plain text reach of the Second Amendment.
And if so, it is prima fascia
protected by the Second Amendment.
-: Should we give the government a chance on remand?
-: Hmm.
-: So I don't know that that's necessary in this case,
and there's a couple reasons why.
The first is that Bruen itself did not remand
for the type of determination that we-
-: I read the Ninth Circuit case as well,
and they said, "What's the point of a remand?"
But it seems we get one side of all the history
from the very good amicus briefs
that we've gotten and from your brief,
but we don't get the other side perhaps of history,
which I don't know what there is.
-: So it does seem, I would just point out
that all of the parties in this case
briefed with full understanding of the Bruen test.
I mean, all the briefing was completed after Bruen,
which was also the case in Teter v. Lopez.
I believe that there were several other Ninth Circuit
Second Amendment challenges pending at the time of Bruen.
And those were all remanded because I think
they were briefed and argued prior to Bruen.
Teter was the one case
that was stayed and then re-briefed in light of Bruen.
And so that was part of why they didn't remand.
And here, although it is true that the trial court decision
occurred prior to Bruen, all of the briefing has occurred
in light of the Bruen standard, and respectfully-
-: Oh, what national historic tradition means.
I don't know whether regulation after 1868 counts.
And we've got a lot out there
that Northern District of California case
had exhaustive testimony.
I will tell you, for one, I do not know
what national historic tradition means,
and if we can consider regulation
after the 14th Amendment or not.
Maybe you do.
-: I can't say for sure what the Supreme Court was thinking.
I think that the rationale in Bruen makes it pretty clear
that the most relevant time periods
for the historical regulations being considered
are the time that the Second Amendment was drafted
up until the 14th Amendment was drafted.
-: Should we just wait 'em out
and see what they do in the domestic violence case
to see if Bruen goes away?
-: I mean, we could very well wait
and see what they do in Rahimi,
but I don't think that's necessary here
for a couple of reasons.
The first is that I- -: I was being facetious.
You probably pick that up.
-: I am curious where that case will go.
But in this case, which is a different arm
and a very different situation, there's a couple reasons
that I think that's not necessary.
And the first is that these really aren't the type of facts
that a fact finder needs to find at trial.
So as opposed to, for example, Guardado too,
where the Commonwealth now, there's a new rule
where the Commonwealth needs to introduce
additional elements or additional evidence
to prove an element beyond a reasonable doubt.
Here, what we're looking at is essentially
statutory interpretation and legislative history,
which are well within the purview
of an appellate court, but-
-: What's the legislative history?
Are we confined to Massachusetts?
Does it matter that folks in Wyoming in 1867
might have had a little bit of a different view
of whether you needed to have
whatever the closest thing to a switchblade was then?
-: Well, this is a challenge under the Second Amendment
to the federal constitution.
So I do think a national-
-: Okay, so I don't, okay.
I agree with you.
And I might have a view of how people
in the Boss wash car to feel about this,
but I'm not so sure how our folks in Montana
might've felt about it in the aftermath of the Civil War
and maybe before the 14th Amendment.
-: Is it your position that it was incumbent
upon the government whose burden it is
to show that the infringement
of the Second Amendment right to bear arms,
that they had the chance to marshal their arguments
in the brief post-Bruen, and so this is the record,
and this is the record that we should decide on?
-: Yes, that is my position. -: Okay.
So who has the burden to show that under prong one
that this is conduct covered by the Second Amendment?
-: I'm not fighting the hypo, I promise.
Burden is a strange word only because
I don't think the Supreme Court ever used the word
burden to describe problem. -: Right, I agree with you.
-: But I do believe it's the appellant-
-: I agree with you, but the amici have taken a position
that it is the burden on the person
asserting the Second Amendment right
to show that this is actually an arm
and conduct covered by the Second Amendment.
And I'm giving you an opportunity to respond.
-: Yes, I think setting aside the question
of whether this is truly a burden, even if it is,
I believe we've met that in our briefing.
And the reason I say that,
and it does seem that this really is the main point
of disagreement between the parties,
but the definition of arms within Bruen
and really Heller I think is quite clear.
It's the historical definition,
although it may be applied in present context.
"Weapons of offense or armor of defense,"
to quote one 1771 dictionary,
"or anything a man wears for his defense
takes into his hands or uses in wrath to cast upon another."
And Heller makes it very clear
that although Heller is about firearms,
it's not limited to firearms.
And the reason we know that
is because just after those definitions,
it cites another 1797 example about bows and arrows.
So I think from its text, Heller contemplates
a broader protection than merely firearms.
Heller defines arms and defines the Second Amendment's
protection of those arms as they were at the founding.
But notes that weapons in common use
are not the only ones protected.
-: Well, we found that out the hard way
in the stun gun case.
-: That is one way of phrasing it, yes.
Stun guns are electrical weapons.
So they are not firearms,
but they are nonetheless protected.
-: So you're saying the weapon
doesn't have to be in common use?
Can you explain that?
-: Yes, so I did note,
I think the Attorney General's brief takes the position
that it must be in common use today or-
-: Self-defense -: Or self-defense.
And I don't believe that's a requirement.
I think that's a ceiling, but not a floor.
So looking at Heller and Bruen, the relevant definition is,
is it an arm applying the historical definition?
And even if it's not, if it is in common use today
for self-defense, it can also be covered.
But it's not required. -: Your position is that
with regard to switch blades or spring-loaded mechanism,
knives, we don't have to reach that
because whether the test is in common uses today
for self-defense, you've already met that
with evidence that you've submitted?
Or would we have to send it back for you
or for somebody to marshal some evidence on self-defense?
-: I think we've provided sufficient evidence
that it constitutes an arm
for purposes of the Second Amendment.
I don't believe it's a requirement
that it be in common use today
for purposes of self-defense.
-: But if we disagreed with you, we'd have to remand.
-: I don't think you would
because this is a facial challenge to the statute.
And again, the type of evidence
that we've presented is largely historical.
-: But does your evidence,
and I haven't looked at all of it,
so you know more than I do at this point.
Does your evidence show
that switchblades were in common use for self-defense?
-: It shows that their precursor,
which was spring-assisted folding knives
were in common use for lawful purposes,
which I think is the correct formulation of the test,
which includes self-defense or carrying in self-defense,
but is not limited specifically to self-defense today.
And I'm happy to point-
-: Counsel, I'm a little bit confused.
I thought you melded two things there
that you previously had separated.
For purposes of the analysis,
are you saying that there is a look modern day
as to whether or not switchblades
are in common use for self-defense?
That not necessarily that it was an arm hysterically,
historically, pardon me,
that it would've fallen under the definition of an arm.
But I thought you said a few minutes ago
that under the modern day view, you'd look to see
whether or not it's currently being used for self-defense.
-: So that is not a requirement,
and I apologize if I wasn't clear.
I think that is essentially a ceiling
on the arms that are protected.
So any weapon that falls within the historical definition,
essentially, weapons of offense
or armor of defense would be protected.
But that is not limited to arms
in existence of the founding as Bruen-
-: Can I just play that back to you
to make sure I understand what you're saying?
-: Of course.
-: You're saying, yes,
if something is used for self-defense today, it's protected,
because the constitution's an organic document,
but that the Second Amendment protects a lot more than that.
-: Essentially, yes.
I think the wording that the Bruen Court used
was the Second Amendment extends prima fascia
to all instruments that constitute bearable arms,
even those that were not in existence
at the time of the founding.
Thus, even though the Second Amendment's definition of arms
is fixed according to its historical meaning,
and that's in reference to Heller's definition,
that general definition covers modern instruments
that facilitate armed self-defense,
much like the First Amendment
also protects modern forms of communication
or the Fourth Amendment applies to more modern forms
of search and seizure. -: That what I thought you said
so going back to Justice Wendlandt's point,
because that's the reason why I thought
there was a lot of appeal to the Attorney General's brief.
You gave us a lot of numbers
in terms of how many switchblades
are in the stream of commerce,
but it doesn't answer the question
about whether or not they're in common use for self-defense.
Just because there's a whole lot of switchblades out there
doesn't mean that there are a whole lot
of people carrying them for self-defense.
It's a very different question.
So wouldn't that benefit from giving the Commonwealth
some opportunity to marshal evidence
as to whether or not that is or is not true?
-: Well, I don't think that is the Commonwealth's burden.
I think that's technically my burden,
understanding the vagueness
around the concept of burdens on prong one.
But respectfully, I think,
and I'm happy to speak more to the historical context,
I think that we have met that burden on appeal
and the Commonwealth has not responded
in a way that would overturn it.
-: I mean, the Commonwealth-
-: But it's not an evidentiary hearing though.
That's the whole point of why we're saying
that perhaps a remand might be more of usefulness
than maybe the Ninth Circuit thought.
I mean, this is not an evidentiary hearing.
The fact that you put it in your brief
and they didn't respond to it, right?
-: That is true, although I think it falls
within the reign of legislative history,
which is certainly within the purview of appellate courts,
given that these are not,
because it's a facial challenge to the statute,
an evidentiary hearing might address the historical record
or additional facts about history,
legislative facts as the Ninth Circuit phrased it.
But it doesn't change the fact
that the statute still absolutely prohibits the behavior.
This isn't evidence sufficient to support a conviction
such that the government needs
to introduce it for the fact finder.
The facts of the case really don't change on remand.
The only thing that changes
is the historical evidence and briefing.
And I think our brief, as well as the helpful information
added by amicus knife rights is more than sufficient
to meet the burden to demonstrate that they are arms
and that they do not fall
within any of the four delineated exceptions.
And one other point I would make is that in Bruen itself,
there was not a remand.
And actually, one of the points
that Justice Breyer made in dissent
was that he would've preferred a remand.
But that was not the part,
those were not the facts that he wanted
additional evidence on.
He didn't dispute the U.S. Supreme Court's ability
to do the historical research.
He wanted more information on how the regulation scheme
worked in practice, because that was a challenge
to a regulation scheme that had discretion.
Whereas here, given the wording of a statute,
anyone who wanted to carry a switchblade
for self-defense would be prohibited from doing so,
which is why the statute amounts to a complete ban.
-: It's not a complete ban on knives.
And I guess I wanted to give you the opportunity
to address that question.
-: It is not, that's correct.
It doesn't ban all knives.
-: So isn't it different than,
well, that's the argument
is that it's different than a total ban.
What's your response?
-: No, because I think it's a total prohibition
on a subset of knives,
much like the regulation in Heller was a total prohibition
on a subset of firearms, specifically handguns.
I mean, the Heller regulation didn't prohibit,
for example, hunting rifles or shotguns.
It only prohibited handguns.
Much like the regulation here,
only it prohibits a subset of knives,
which is switch knives, to use the terms in the text,
or spring-assisted knives.
But the reason it's an absolute ban
is because it applies to every single person
in all circumstances, wherever they are.
-: Does that fit in with the usual Second Amendment
debate about reasonable restriction, right?
Because if we have firearms, that's one thing,
then we'll argue about extended magazines at some point.
And you know where I'm going with this.
So if we allow someone to carry a buck knife
or a regular folded knife and we say,
"Well, reasonable regulation
is you shouldn't have a spring-assisted,
essentially folded knife."
How is that not a reasonable restriction?
-: I think there are two parts to the answer.
The first is that it does not fall within-
-: Well, we're talking about milliseconds,
from when I can yield the blade, right?
-: I'm sorry, can you say that- -: We're talking milliseconds
from the time I can either quickly do this
with a buck knife or press a switch, right?
So why is that a reasonable restriction?
-: Because it is an absolute ban on having it
in any circumstance. -: So is a ban
on extended magazines.
That's an absolute ban.
You're not answering the question.
Why is that not a reasonable restriction?
-: Respectfully, it's not a reasonable restriction
because it doesn't fall within one of the four
categories outlined in Bruen prong one.
And because the commonwealth hasn't shown
a historical tradition of regulating similar to that.
From everything I have found,
although I don't think my burden is on that prong,
switchblades were never banned
prior to the 1950s in any state,
let alone at the federal level.
There may have been some evidence of concealed carry bans,
but they were not absolutely prohibited.
And given there are four exceptions
to what constitute protected arms,
and that includes, for example,
regulations on classes of persons who can carry it, right?
The language that Bruen uses is felons and the mentally ill,
although I don't know that I'd phrase it that way.
-: And the unusual, et cetera, right?
If we go through that. -: Or sensitive places.
-: So why isn't the switchblade,
the functional equivalent of the sort off shotgun
that's quickly available and within a short distance
has a broad spray?
-: Well, I think I can answer that mechanically,
but my sense is that your question is more,
why isn't this dangerous and unusual
much like a saw off shotgun might be.
And I think my response would be, first,
and correct me if that's not the question,
under the Bruen formulation, in order to be an exception,
an arm must be both dangerous and unusual.
I think given that handguns
are not considered dangerous under this formulation,
it's quite hard to argue that switchblades
are somehow more dangerous than handguns
or electrical weapons, which from the decision in Ramirez,
I think outlines a number of the dangers
associated with sun guns. -: But I think
the firearms are not not considered dangerous.
They're just not unusual.
-: That's the purpose of a firearm.
-: And I guess you would argue that switchblades are also,
not that they're not dangerous,
it's just that they're not unusual.
And it's a conjunctive test.
-: I would argue both that they're less dangerous
than arms that have been- -: Less dangerous
is not the test.
The test is dangerous and unusual, right?
So it's dangerous. -: Yes, of course.
Any weapon can be dangerous. -: But it's not unusual.
-: Yes, essentially.
-: I'm sorry, Chief.
-: Okay, I thought you said,
I'm still confused about who you think
has the burden to show whether or not this is an arm.
And I thought you said that you don't, but you did.
And then I thought you said that you did have the burden.
So could you just explain?
-: Yes, I see where I was unclear.
So I do think that prong one is the burden, so to speak,
of the moving party.
So that would be my burden to show that it is an arm.
Where it is not my burden is to show
that the regulation in question
is consistent with the nation's historical tradition,
which I think there was a prior question
that sort of bled over into,
is this a reasonable regulation?
Which it's kind of a strange test
because there's a bit of inquiry into the history
of regulating and the purposes
in the determination of whether something's an arm.
But that question I think actually goes more to prong two.
Is this a reasonable regulation?
Because prong two requires the government
to show that the regulation is consistent
with the nation's historical tradition.
-: And so that leads me to my second question, which is,
you said that the Commonwealth didn't show that,
but that's why you got the questions
about why shouldn't this be a remand
so that the Commonwealth has an opportunity to show that.
And you said, "No, you have enough information."
But I mean, that may not be the Commonwealth's view on it.
-: It may not.
I would just note that really,
no party addressing that question
has found any regulation whatsoever
prior to 1950 that is akin to an absolute ban.
It doesn't even really seem like the parties disagree
that switchblades were not banned until the 1950s.
So I'm not sure what benefit a remand would have
solely on that prong.
-: Can I ask you where that fits in in the Bruen analysis?
Because when we get to Bruen
and say we do this ourselves, right?
And we don't remand it, we look to see
what the functional equivalents of folding knives, I think.
And if you look at the Ninth Circuit case,
that's what they do.
We look at the historically
how the country has treated folded knives
and then assisted folded knives.
But then the next layer that you discuss
is how it came to be in the 1950s,
and I guess after West Side story
that switchblades were banned.
Does that fit into the reason for the ban?
Does that fit into the Bruen analysis?
And where does it fit in?
-: It is a bit tangential, to be honest.
I think it's- -: It's interesting.
-: Exactly. -: But I don't know
where it fits in legally.
That's why I'm puzzled.
-: I think my instincts is that it fits in prong two.
But I tend to agree that it's more
of an interesting tangent
than fitting- -: I don't even know
if it's relevant because it didn't exist back then.
And who cares under the Bruen?
-: I think it's relevant under prong two
in that prong two asks us
to look at the nation's historical tradition of regulation,
which is to say, how has this weapon
been regulated through time?
And I think the government has pointed towards some case law
about the purpose of section 10B.
There's the appeals court, Miller.
Strangely, a number of relevant cases are all called Miller.
And the Miller case just said
the purpose of section 10B was to ban,
I think the direct language is,
"knives that are suited towards stabbing human beings."
-: Aren't all knives suited to stab human beings?
-: I would think so, yes.
But I think- -: Let me ask you,
and then do we get into the reasons
surrounding the statute which are not all that pleasant
in their ethnic and racial components?
-: I think that's correct,
because there is case law saying
the reason for the ban is this.
They are dangerous.
But if we look into why they were banned,
we ask ourselves,
well, why did people think they were dangerous?
Was that an evidence-based conclusion?
Was that realistic,
or was that based solely on stereotyping?
-: But you think this fits in, at least in some respects,
into the Bruen analysis?
-: Not neatly.
I think it is relevant to prong two
when we are analyzing whether it's consistent
with the nation's historical tradition,
but I don't think it's dispositive,
if that makes sense. -: Right, so then if this case
were to go up, then the issue would become,
well, why did you look at the 1950s legislation?
You should have stuck with your tri-corned hat
and looked at the founding, correct?
-: That is our position. -: All right.
-: Well, and isn't it relevant that until the 1950s,
so far as the government has shown,
these weapons were not regulated?
-: Yes, it is relevant.
That is why the government
has not met its burden under prong two.
And that is why the statute is facially unconstitutional.
-: Okay, thank you very much.
-: Thank you.
We would ask that you reverse the decision
in the trial court and overturn their conviction.
Thank you. -: Thank you.
-: Okay, Attorney Martino.
-: Good morning.
May it please the court, Elisabeth Martino,
Assistant District Attorney on behalf of the Commonwealth,
and the Commonwealth is asking that the court affirm
the trial judge's denial
of the defendant's motion to dismiss.
-: And you're also asking for a remand, right?
-: Our primary position is that this court can affirm
the denial of the motion to dismiss.
-: So assuming that that is not gonna happen,
what would you do on remand
since you've now joined the AG and asking for it?
-: So just for clarification purposes,
we did join as that remand could be an alternative remedy,
but that, first and foremost, we're arguing
that affirmance would be proper on this record.
And that's because the defendant in this case did-
-: Can you answer why a remand
would be appropriate as a secondary option?
-: Of course.
The defendant has the burden of showing
that the weapon in question is protected,
covered by the Second Amendment.
-: Where does that come in Bruen?
What page does Bruen say that?
-: Yep.
It's not explicitly stated,
but in Bruen and in Heller and in McDonald,
the Supreme Court says that the covered weapon,
the protected weapon by the Second Amendment
are those that are in common use today for self-defense.
And it's a prima fascia showing
by the movement, the proponent.
-: That's the part that I'm wondering about.
Where is that in the case law?
-: Yeah, so it's-
-: Prima fascia keep showing by the movement.
-: Yeah.
Well, again, it's not quite explicit,
and I think there's a little bit of a move,
ability to argue both ways.
But I think that most courts are accepting that it is,
most lower courts, that it is the movement.
And I think even an argument,
my sister did say, I would accept
that it is our initial threshold showing,
the defendant's threshold showing
that the weapon is covered by the Second Amendment.
-: And under the First Amendment,
whose burden is it to show
that something is not covered speech?
-: I don't know off the top of my head.
I would argue- -: Would that be an appropriate
analogy for the Second Amendment?
-: I mean, yes, I think probably, because the rights,
and again, I am saying probably and hedging a little bit
because I haven't really analyzed that,
but I would think yes, as both the First
and Second Amendment are co-equal rights.
And I think the language of Bruen,
and I just find it for your honors,
but it is that there's,
once the movement has established that a prima fascia,
that the weapon is covered is protected
by the Second Amendment, then the burden shifts
to the government to show a national history
in its laws of regulating the weapon.
-: So do you think the remand would be required
as a secondary option for the defendant
in this case to show that it's an arm?
Or do you agree that it's been shown?
-: No, no, that's our primary contention
is that it has not been shown
to be a weapon in common use today for self-defense.
-: Well, aren't we using the Heller definition of arm?
-: Which was reaffirmed in Bruen, right?
-: So I don't get how we don't get past that,
how that's an issue here.
If you read, you of course have,
and as counsel explained earlier,
the definition of arm is anything carried on the person
to protect oneself, essentially.
-: Well, I think that's a dangerous
definition, right? -: Well, it's not mine.
It's Heller's.
I didn't write it. -: Well, in Heller,
to be clear, in Heller, nobody disputed that the handgun,
it wasn't the first prong that was disputed,
neither in Heller or Bruen.
So it wasn't really litigated.
-: The text. doesn't say firearm, it says arm.
-: Absolutely.
But there was no question that the firearm,
it wasn't disputed that a firearm was a weapon
covered by the Second Amendment
because of its common use today in self-defense.
-: Tell me, of all these knife cases,
which are a lot more than I thought they'd be,
that have been decided by lower courts and circuit courts,
anyone that has rejected a knife as an arm?
-: Right, so the only case that we have post-Bruen
is the Ninth Circuit Teter case, which is cited
in the knife amici and the CDL amici.
That case is actually,
there's been a petition for rehearing,
and it was joined by 16 states
and the Districts of Columbia, including Massachusetts,
because of the sort of summary way
that the Ninth Circuit treated the two-part test
without analyzing first and carefully the first prong,
which is whether these butterfly knives
meet the definition of an arm,
and are thus covered under the Second Amendment?
-: If you think Heller is too broad,
what definition of arm should we apply?
-: Yeah, it's the one I think that is put forth
both in the Commonwealth's brief
and in the Attorney General's brief,
which is that it must be in common use today
for the core purpose of self-defense.
And what's wrong about, or why the weapon and issue here,
the switchblade does not fall under that definition
is the very nature of the weapon should be considered.
-: It's circular though, 'cause you've banned them.
-: No, no, but I'm not talking about
the numbers of ownership.
I'm talking about the nature of the weapon,
which the court said, in Bruen and Heller and McDonald,
that you look at the nature and the use of the weapon.
So a switchblade, by its very nature,
is a lethal weapon whose lethality is concealed
until the very second it's used to then injure.
-: Alright, so is the buck knife that's in my toolbox.
-: Well, no, I'm sorry.
The buck knife, I don't know about.
And this is again- -: A folded knife.
You can use it to cut shingles,
or you could use it to stab people.
-: Right, but you have to, you know,
the difference, I think, is that you have to unfold it
as opposed to the switchblade.
And so two things to answer your question.
One is that-
-: Well, wait, sorry.
Just technically.
A switchblade, you also have to unfold.
You just have a spring loaded mechanism to do it
as opposed to using the flick of the wrist.
-: Well, these are all sort of factual questions
that aren't borne out in the record, which I think is-
-: That really something that the government's disputing?
-: No, I think that at this point,
I think that this court can decide as a matter of law
for the Commonwealth, but not against the Commonwealth.
And this is why.
Because the defendant pled guilty
to having a spring-operated switchblade,
which, as I'm pointing out, is by its nature non-defensive.
The lethality is concealed until the very last second.
-: I don't know that I can join your rationale, okay?
Just bear with me for a minute.
-: Yes, your honor. -: Say you have the buck knife
that Justice Gaziano is talking about,
and you're being attacked.
Do you want the knife to defend yourself,
that you're already in the midst of panic and angst
that you've gotta try to figure out how to unfold it?
Or do you want the knife that you can hit a button,
and it'll be deployed if you have to defend yourself.
-: So respectfully, your honor,
I think that self-defense involves many things,
including trying to avoid actually hurting somebody.
-: That's retreat.
Self-defense, the idea of trying to figure out
whether or not this is in common use for self-defense.
That it would seem to militate
in favor that it is for self-defense
the more quickly you can deploy it.
-: But I think the reason that the handgun
is the quintessential weapon of self-defense
favored by Americans throughout the country today
is its deterrent value.
"Stop or I'll shoot,"
which is fundamentally different from the switchblade,
which is I don't got nothing,
until somebody comes and it's immediately lethal.
It's the concealed aspect of it.
It's the weapon of ambush,
which is why it is fundamentally different
than the handgun or the knife you may bear on your hip,
which is self-defense because it is to deter violence.
-: So one of the things in Heller was that
whenever the state statute at issue required
the firearm to be disassembled in the home,
and I think it was the majority decision
that said that that made it less helpful for self-defense.
So I'm wondering why the spring-loaded
mechanism isn't similar.
the ban on the spring loaded mechanism
isn't similar to the requirement
that the firearm be disassembled in the home.
-: Well, it's a point well-taken, your honor.
But in the same time, in Heller,
the plaintiff there did not say
that he was disputing the use of trigger locks
and ways to store your weapon to keep it safe, right?
But keeping it completely disassembled
and the requirement of the law
to keep it completely disassembled
rendered it essentially inoperable.
But they were not challenging safety mechanisms,
trigger locks, things that keep it safe
from the child walking in.
Think of the switchblade.
It does not appear lethal.
It has no deterrent effect.
And in fact, you leave it on the table
and a 4-year-old comes in and plays with it.
-: Under your logic, that'd be okay
to be in concealable handguns,
and everybody would have to carry a long gun
or a long rifle for self-defense, right?
-: Well, I think- -: 'Cause quintessentially,
a firearm's concealed on people,
or a handgun is, at least.
-: Well, until it's pulled out,
and then nature is immediately apparent as a legal weapon.
-: Yeah, I just don't get your distinction between,
and we look at the rest of the country
and the rest of the country has no ban on switchblades,
or most of the country.
-: Well, respectfully, I think there are many,
many jurisdictions that still do.
The AG listed them out helpfully.
But I think, first and foremost,
it's the Commonwealth's contention that as a matter of law,
the defendant has failed to show that this weapon
is a weapon commonly used in self-defense today.
It is the antithesis of self-defense
and in fact is a concealed,
the purpose of it as the lethal weapon is concealed
until the last second where a press of the button
immediately renders it a lethal weapon.
And that it's no deterrent value, unlike the handgun,
which in the cases, the only binding precedent
on this court, handgun is the self-defense weapon of choice.
I think it goes to the point that-
-: I think you're reading self-defense narrowly as well,
as Justice Georges posited to you.
It's not just deterrence.
It's you're being attacked and you need a weapon.
-: Yeah, any weapon can honestly be defined
as a weapon of self-defense.
A rocket launcher can be used in self-defense.
-: But then we get into the other unusual,
or we get into the other parts of the exception.
-: We do, but the- -: Where if you go through
the statute that we have,
some of those items on the statute
probably wouldn't hold water under the rest of the statute.
But this might be different.
-: Yes, I think that the record, as it stands,
does show that this is not the type of weapon today
commonly used for self-defense.
That's the main argument.
If the court should disagree and think that-
-: Oh, that we know, because it's the same question
that began your argument from Justice Wendlandt,
or that was asked of your sister.
We just have a number of how many are manufactured
that doesn't tell us whether or not
people are commonly using this for self-defense.
It certainly doesn't tell you that in Massachusetts,
'cause you can't have 'em.
But, I mean, it seems that you need a record to develop it.
You've made a couple of statements that talked about
what the only purpose of switchblades are.
Well, what's the evidence of that?
Where is that from?
We don't know.
And when Judge Stanton, wouldn't that be a wonderful thing
to have in front of Judge Stanton to talk about
all of these different permutations and implications?
-: Yes, your honor, which is why I think
with the AG's brief, we did join that
as an alternative remedy.
It's not, I don't think, necessary on this record
because of the nature of the switchblade,
but should the court disagree,
I think a remand could be useful under the circumstances,
especially where this case can have
broad implications in the Commonwealth.
If, for example, the court were to follow
the Ninth Circuit in the Teter case
with the butterfly knives and find as a matter of law
all bladed weapons are covered by the Second Amendment,
that case has been used now to launch
many, many, many attacks on legislation of assault rifles
and lots of different weapons
throughout the federal court system.
-: I might have missed that in that case.
Did it say all bladed weapons or just say butterfly knives?
-: It said butterfly knife is ablated weapon
and as such is covered by the Second Amendment
without any analysis as to the weapon itself.
-: So if there is a remand,
then defendant meets its burden,
if indeed it is the defendant's burden
on whether it's an arm on national historic tradition.
Do you look at anything
after the passage of the 14th amendment?
-: I think the relevant inquiry is between,
yeah, the founding and the passage of this.
Oh, well, the Second Amendment
and possibly into the 14th Amendment.
And I think in terms of-
-: I think post-1868.
-: Does that matter? -: No.
-: What about the reason for the ban?
Does that matter?
-: I'm sorry, your Honor?
-: The reason for the ban in the 1950s.
-: So I think that that can only be relevant,
and I agree with my sister with the term tangentially.
I think it can have some relevance to show that
I don't think that spring-assisted switchblades
were common in the 17 and 1800s,
and that that is a modern development of knives.
And as that modern development proceeded a rise,
the legislature saw a rise in crime
and then decided to outlaw that type of weapon,
so to the extent that a court looks at,
was this in common use at the time,
and is this just a modern development of that?
I think you can look at sort of that,
yes, it is a modern development of pocket knives
that were in existence in the 17 and 1800s,
but as that modern development came about,
legislatures noticed that they were dangerous
and limited their use.
Does that make sense?
But in terms of does it fit into the nation's
history of legislation?
So meeting the Commonwealth burden?
No, because it's not about the relevant time period.
-: Okay, so the remand would only be about the question
whether a spring-loaded pocket knife is an arm?
-: No, your Honor.
It would also be about the relevant
historical legislation.
And in footnote, six of the Bruen decision,
the U.S. Supreme Court said that trial judges
at the evidentiary level are tasked with determining,
one, whether a weapon is in common use
for self-defense today.
And two, whether the historical legislation is analogous,
is a historical analog.
So they specifically said-
-: Right, but I'm just saying,
for this particular weapon,
you're not aware standing here today
of any evidence before 1950
that this was in any way prohibited?
-: No, but I think that that's because-
-: And you've looked?
-: Yes, but I think because this weapon
is a modern development of pocket knives,
so there is a little bit of a difference.
I do think that historical analogs exist
and are cited in Bruen itself of limiting
concealed carry of weapons
and especially certain classes of weapons
that were considered sort of like not honorable weapons,
dirks, daggers, Bowie knives.
And I think that the switchblade falls
into these sort of different kinds of knives
that were regulated from the founding.
And also, the switchblade,
the nature of the switchblade as a concealed weapon,
I think the historical analogs,
which are in Bruen in Massachusetts and New Jersey
of limiting concealed carry
can be applicable to the case here.
-: But is 10B a prohibition on concealing a switchblade?
-: Well, I think the reason it's an analog
is because a switchblade, in of itself,
is a weapon of concealment.
-: 'Cause the blade is concealed?
-: Yes. -: Just like a pocket knife?
-: Yes, but I think, yeah, I think the difference here is,
and we're looking very granularly under this test.
And I think importantly, because, and I will,
with the permission of the court,
perhaps include the petition for rehearing under Teter
because it shows it's a good summary
of all of the challenges to all these different types
of legislation based on Teter out of the Ninth Circuit
because of it was such a broad decision.
All bladed weapons are covered by the Second Amendment
without a granular analysis
of the actual butterfly knife in question.
-: This was a conditional plea, right?
-: Yes, your Honor. -: So you agree
if there was a remand that that would all stay the same?
-: I think-
-: In other words,
there couldn't be a withdrawal or a higher sentence.
-: No, no, right, absolutely.
Yes, your Honor.