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SJC-13432.
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Commonwealth v. David E. Canjura.
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Okay, Attorney Gerber, whenever you're ready.
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Good morning, your honors, and may it please the court.
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Kaitlyn Gerber, on behalf of David Canjura.
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This case presents a Second Amendment facial challenge
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to the ban on carrying a switchblade
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or spring-assisted knife under Section 10B
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of the General laws chapter 269.
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Now, our analysis in this case is guided primarily
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by the two-pronged test articulated
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by the U.S. Supreme Court in Bruen.
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Prong one asks whether the conduct in question
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falls within the plain text reach of the Second Amendment.
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And if so, it is prima fascia
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protected by the Second Amendment.
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Should we give the government a chance on remand?
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Hmm.
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So I don't know that that's necessary in this case,
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and there's a couple reasons why.
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The first is that Bruen itself did not remand
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for the type of determination that we-
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I read the Ninth Circuit case as well,
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and they said, "What's the point of a remand?"
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But it seems we get one side of all the history
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from the very good amicus briefs
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that we've gotten and from your brief,
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but we don't get the other side perhaps of history,
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which I don't know what there is.
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So it does seem, I would just point out
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that all of the parties in this case
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briefed with full understanding of the Bruen test.
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I mean, all the briefing was completed after Bruen,
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which was also the case in Teter v. Lopez.
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I believe that there were several other Ninth Circuit
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Second Amendment challenges pending at the time of Bruen.
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And those were all remanded because I think
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they were briefed and argued prior to Bruen.
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Teter was the one case
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that was stayed and then re-briefed in light of Bruen.
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And so that was part of why they didn't remand.
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And here, although it is true that the trial court decision
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occurred prior to Bruen, all of the briefing has occurred
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in light of the Bruen standard, and respectfully-
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Oh, what national historic tradition means.
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I don't know whether regulation after 1868 counts.
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And we've got a lot out there
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that Northern District of California case
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had exhaustive testimony.
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I will tell you, for one, I do not know
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what national historic tradition means,
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and if we can consider regulation
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after the 14th Amendment or not.
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Maybe you do.
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I can't say for sure what the Supreme Court was thinking.
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I think that the rationale in Bruen makes it pretty clear
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that the most relevant time periods
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for the historical regulations being considered
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are the time that the Second Amendment was drafted
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up until the 14th Amendment was drafted.
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Should we just wait 'em out
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and see what they do in the domestic violence case
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to see if Bruen goes away?
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I mean, we could very well wait
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and see what they do in Rahimi,
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but I don't think that's necessary here
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for a couple of reasons.
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The first is that I-
I was being facetious.
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You probably pick that up.
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I am curious where that case will go.
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But in this case, which is a different arm
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and a very different situation, there's a couple reasons
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that I think that's not necessary.
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And the first is that these really aren't the type of facts
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that a fact finder needs to find at trial.
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So as opposed to, for example, Guardado too,
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where the Commonwealth now, there's a new rule
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where the Commonwealth needs to introduce
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additional elements or additional evidence
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to prove an element beyond a reasonable doubt.
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Here, what we're looking at is essentially
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statutory interpretation and legislative history,
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which are well within the purview
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of an appellate court, but-
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What's the legislative history?
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Are we confined to Massachusetts?
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Does it matter that folks in Wyoming in 1867
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might have had a little bit of a different view
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of whether you needed to have
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whatever the closest thing to a switchblade was then?
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Well, this is a challenge under the Second Amendment
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to the federal constitution.
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So I do think a national-
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Okay, so I don't, okay.
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I agree with you.
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And I might have a view of how people
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in the Boss wash car to feel about this,
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but I'm not so sure how our folks in Montana
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might've felt about it in the aftermath of the Civil War
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and maybe before the 14th Amendment.
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Is it your position that it was incumbent
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upon the government whose burden it is
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to show that the infringement
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of the Second Amendment right to bear arms,
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that they had the chance to marshal their arguments
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in the brief post-Bruen, and so this is the record,
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and this is the record that we should decide on?
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Yes, that is my position.
Okay.
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So who has the burden to show that under prong one
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that this is conduct covered by the Second Amendment?
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I'm not fighting the hypo, I promise.
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Burden is a strange word only because
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I don't think the Supreme Court ever used the word
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burden to describe problem.
Right, I agree with you.
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But I do believe it's the appellant-
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I agree with you, but the amici have taken a position
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that it is the burden on the person
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asserting the Second Amendment right
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to show that this is actually an arm
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and conduct covered by the Second Amendment.
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And I'm giving you an opportunity to respond.
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Yes, I think setting aside the question
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of whether this is truly a burden, even if it is,
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I believe we've met that in our briefing.
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And the reason I say that,
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and it does seem that this really is the main point
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of disagreement between the parties,
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but the definition of arms within Bruen
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and really Heller I think is quite clear.
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It's the historical definition,
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although it may be applied in present context.
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"Weapons of offense or armor of defense,"
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to quote one 1771 dictionary,
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"or anything a man wears for his defense
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takes into his hands or uses in wrath to cast upon another."
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And Heller makes it very clear
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that although Heller is about firearms,
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it's not limited to firearms.
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And the reason we know that
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is because just after those definitions,
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it cites another 1797 example about bows and arrows.
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So I think from its text, Heller contemplates
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a broader protection than merely firearms.
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Heller defines arms and defines the Second Amendment's
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protection of those arms as they were at the founding.
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But notes that weapons in common use
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are not the only ones protected.
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Well, we found that out the hard way
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in the stun gun case.
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That is one way of phrasing it, yes.
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Stun guns are electrical weapons.
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So they are not firearms,
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but they are nonetheless protected.
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So you're saying the weapon
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doesn't have to be in common use?
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Can you explain that?
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Yes, so I did note,
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I think the Attorney General's brief takes the position
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that it must be in common use today or-
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Self-defense
Or self-defense.
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And I don't believe that's a requirement.
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I think that's a ceiling, but not a floor.
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So looking at Heller and Bruen, the relevant definition is,
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is it an arm applying the historical definition?
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And even if it's not, if it is in common use today
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for self-defense, it can also be covered.
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But it's not required.
Your position is that
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with regard to switch blades or spring-loaded mechanism,
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knives, we don't have to reach that
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because whether the test is in common uses today
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for self-defense, you've already met that
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with evidence that you've submitted?
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Or would we have to send it back for you
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or for somebody to marshal some evidence on self-defense?
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I think we've provided sufficient evidence
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that it constitutes an arm
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for purposes of the Second Amendment.
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I don't believe it's a requirement
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that it be in common use today
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for purposes of self-defense.
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But if we disagreed with you, we'd have to remand.
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I don't think you would
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because this is a facial challenge to the statute.
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And again, the type of evidence
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that we've presented is largely historical.
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But does your evidence,
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and I haven't looked at all of it,
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so you know more than I do at this point.
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Does your evidence show
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that switchblades were in common use for self-defense?
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It shows that their precursor,
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which was spring-assisted folding knives
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were in common use for lawful purposes,
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which I think is the correct formulation of the test,
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which includes self-defense or carrying in self-defense,
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but is not limited specifically to self-defense today.
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And I'm happy to point-
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Counsel, I'm a little bit confused.
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I thought you melded two things there
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that you previously had separated.
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For purposes of the analysis,
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are you saying that there is a look modern day
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as to whether or not switchblades
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are in common use for self-defense?
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That not necessarily that it was an arm hysterically,
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historically, pardon me,
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that it would've fallen under the definition of an arm.
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But I thought you said a few minutes ago
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that under the modern day view, you'd look to see
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whether or not it's currently being used for self-defense.
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So that is not a requirement,
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and I apologize if I wasn't clear.
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I think that is essentially a ceiling
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on the arms that are protected.
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So any weapon that falls within the historical definition,
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essentially, weapons of offense
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or armor of defense would be protected.
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But that is not limited to arms
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in existence of the founding as Bruen-
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Can I just play that back to you
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to make sure I understand what you're saying?
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Of course.
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You're saying, yes,
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if something is used for self-defense today, it's protected,
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because the constitution's an organic document,
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but that the Second Amendment protects a lot more than that.
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Essentially, yes.
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I think the wording that the Bruen Court used
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was the Second Amendment extends prima fascia
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to all instruments that constitute bearable arms,
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even those that were not in existence
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at the time of the founding.
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Thus, even though the Second Amendment's definition of arms
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is fixed according to its historical meaning,
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and that's in reference to Heller's definition,
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that general definition covers modern instruments
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that facilitate armed self-defense,
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much like the First Amendment
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also protects modern forms of communication
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or the Fourth Amendment applies to more modern forms
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of search and seizure.
That what I thought you said
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so going back to Justice Wendlandt's point,
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because that's the reason why I thought
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there was a lot of appeal to the Attorney General's brief.
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You gave us a lot of numbers
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in terms of how many switchblades
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are in the stream of commerce,
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but it doesn't answer the question
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about whether or not they're in common use for self-defense.
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Just because there's a whole lot of switchblades out there
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doesn't mean that there are a whole lot
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of people carrying them for self-defense.
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It's a very different question.
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So wouldn't that benefit from giving the Commonwealth
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some opportunity to marshal evidence
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as to whether or not that is or is not true?
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Well, I don't think that is the Commonwealth's burden.
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I think that's technically my burden,
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understanding the vagueness
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around the concept of burdens on prong one.
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But respectfully, I think,
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and I'm happy to speak more to the historical context,
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I think that we have met that burden on appeal
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and the Commonwealth has not responded
265
00:11:39.660 --> 00:11:40.770
in a way that would overturn it.
266
00:11:40.770 --> 00:11:42.030
I mean, the Commonwealth-
267
00:11:42.030 --> 00:11:44.400
But it's not an evidentiary hearing though.
268
00:11:44.400 --> 00:11:46.140
That's the whole point of why we're saying
269
00:11:46.140 --> 00:11:50.580
that perhaps a remand might be more of usefulness
270
00:11:50.580 --> 00:11:51.990
than maybe the Ninth Circuit thought.
271
00:11:51.990 --> 00:11:54.360
I mean, this is not an evidentiary hearing.
272
00:11:54.360 --> 00:11:55.650
The fact that you put it in your brief
273
00:11:55.650 --> 00:11:58.233
and they didn't respond to it, right?
274
00:11:59.130 --> 00:12:00.510
That is true, although I think it falls
275
00:12:00.510 --> 00:12:02.400
within the reign of legislative history,
276
00:12:02.400 --> 00:12:05.763
which is certainly within the purview of appellate courts,
277
00:12:06.600 --> 00:12:08.010
given that these are not,
278
00:12:08.010 --> 00:12:10.380
because it's a facial challenge to the statute,
279
00:12:10.380 --> 00:12:13.560
an evidentiary hearing might address the historical record
280
00:12:13.560 --> 00:12:17.850
or additional facts about history,
281
00:12:17.850 --> 00:12:20.373
legislative facts as the Ninth Circuit phrased it.
282
00:12:21.540 --> 00:12:22.740
But it doesn't change the fact
283
00:12:22.740 --> 00:12:26.730
that the statute still absolutely prohibits the behavior.
284
00:12:26.730 --> 00:12:30.240
This isn't evidence sufficient to support a conviction
285
00:12:30.240 --> 00:12:31.980
such that the government needs
286
00:12:31.980 --> 00:12:33.810
to introduce it for the fact finder.
287
00:12:33.810 --> 00:12:37.200
The facts of the case really don't change on remand.
288
00:12:37.200 --> 00:12:38.400
The only thing that changes
289
00:12:38.400 --> 00:12:40.800
is the historical evidence and briefing.
290
00:12:40.800 --> 00:12:45.090
And I think our brief, as well as the helpful information
291
00:12:45.090 --> 00:12:47.730
added by amicus knife rights is more than sufficient
292
00:12:47.730 --> 00:12:49.980
to meet the burden to demonstrate that they are arms
293
00:12:49.980 --> 00:12:50.970
and that they do not fall
294
00:12:50.970 --> 00:12:54.000
within any of the four delineated exceptions.
295
00:12:54.000 --> 00:12:57.810
And one other point I would make is that in Bruen itself,
296
00:12:57.810 --> 00:12:58.950
there was not a remand.
297
00:12:58.950 --> 00:13:00.120
And actually, one of the points
298
00:13:00.120 --> 00:13:02.490
that Justice Breyer made in dissent
299
00:13:02.490 --> 00:13:04.200
was that he would've preferred a remand.
300
00:13:04.200 --> 00:13:06.150
But that was not the part,
301
00:13:06.150 --> 00:13:08.790
those were not the facts that he wanted
302
00:13:08.790 --> 00:13:10.110
additional evidence on.
303
00:13:10.110 --> 00:13:12.810
He didn't dispute the U.S. Supreme Court's ability
304
00:13:12.810 --> 00:13:14.760
to do the historical research.
305
00:13:14.760 --> 00:13:17.550
He wanted more information on how the regulation scheme
306
00:13:17.550 --> 00:13:20.010
worked in practice, because that was a challenge
307
00:13:20.010 --> 00:13:22.620
to a regulation scheme that had discretion.
308
00:13:22.620 --> 00:13:27.240
Whereas here, given the wording of a statute,
309
00:13:27.240 --> 00:13:29.880
anyone who wanted to carry a switchblade
310
00:13:29.880 --> 00:13:33.600
for self-defense would be prohibited from doing so,
311
00:13:33.600 --> 00:13:37.080
which is why the statute amounts to a complete ban.
312
00:13:37.080 --> 00:13:39.630
It's not a complete ban on knives.
313
00:13:39.630 --> 00:13:41.490
And I guess I wanted to give you the opportunity
314
00:13:41.490 --> 00:13:43.770
to address that question.
315
00:13:43.770 --> 00:13:44.850
It is not, that's correct.
316
00:13:44.850 --> 00:13:46.020
It doesn't ban all knives.
317
00:13:46.020 --> 00:13:48.600
So isn't it different than,
318
00:13:48.600 --> 00:13:50.280
well, that's the argument
319
00:13:50.280 --> 00:13:52.530
is that it's different than a total ban.
320
00:13:52.530 --> 00:13:53.910
What's your response?
321
00:13:53.910 --> 00:13:56.790
No, because I think it's a total prohibition
322
00:13:56.790 --> 00:13:58.020
on a subset of knives,
323
00:13:58.020 --> 00:14:00.990
much like the regulation in Heller was a total prohibition
324
00:14:00.990 --> 00:14:03.720
on a subset of firearms, specifically handguns.
325
00:14:03.720 --> 00:14:05.550
I mean, the Heller regulation didn't prohibit,
326
00:14:05.550 --> 00:14:07.410
for example, hunting rifles or shotguns.
327
00:14:07.410 --> 00:14:09.270
It only prohibited handguns.
328
00:14:09.270 --> 00:14:11.580
Much like the regulation here,
329
00:14:11.580 --> 00:14:14.250
only it prohibits a subset of knives,
330
00:14:14.250 --> 00:14:17.310
which is switch knives, to use the terms in the text,
331
00:14:17.310 --> 00:14:19.170
or spring-assisted knives.
332
00:14:19.170 --> 00:14:21.330
But the reason it's an absolute ban
333
00:14:21.330 --> 00:14:23.490
is because it applies to every single person
334
00:14:23.490 --> 00:14:25.830
in all circumstances, wherever they are.
335
00:14:25.830 --> 00:14:28.920
Does that fit in with the usual Second Amendment
336
00:14:28.920 --> 00:14:31.410
debate about reasonable restriction, right?
337
00:14:31.410 --> 00:14:34.860
Because if we have firearms, that's one thing,
338
00:14:34.860 --> 00:14:38.340
then we'll argue about extended magazines at some point.
339
00:14:38.340 --> 00:14:41.280
And you know where I'm going with this.
340
00:14:41.280 --> 00:14:44.880
So if we allow someone to carry a buck knife
341
00:14:44.880 --> 00:14:47.377
or a regular folded knife and we say,
342
00:14:47.377 --> 00:14:48.720
"Well, reasonable regulation
343
00:14:48.720 --> 00:14:50.670
is you shouldn't have a spring-assisted,
344
00:14:50.670 --> 00:14:52.137
essentially folded knife."
345
00:14:53.610 --> 00:14:55.660
How is that not a reasonable restriction?
346
00:14:57.600 --> 00:14:59.547
I think there are two parts to the answer.
347
00:14:59.547 --> 00:15:01.830
The first is that it does not fall within-
348
00:15:01.830 --> 00:15:03.090
Well, we're talking about milliseconds,
349
00:15:03.090 --> 00:15:06.270
from when I can yield the blade, right?
350
00:15:06.270 --> 00:15:08.490
I'm sorry, can you say that-
We're talking milliseconds
351
00:15:08.490 --> 00:15:10.620
from the time I can either quickly do this
352
00:15:10.620 --> 00:15:13.260
with a buck knife or press a switch, right?
353
00:15:13.260 --> 00:15:15.693
So why is that a reasonable restriction?
354
00:15:17.160 --> 00:15:19.650
Because it is an absolute ban on having it
355
00:15:19.650 --> 00:15:21.270
in any circumstance.
So is a ban
356
00:15:21.270 --> 00:15:23.520
on extended magazines.
357
00:15:23.520 --> 00:15:24.390
That's an absolute ban.
358
00:15:24.390 --> 00:15:25.350
You're not answering the question.
359
00:15:25.350 --> 00:15:27.400
Why is that not a reasonable restriction?
360
00:15:29.160 --> 00:15:31.200
Respectfully, it's not a reasonable restriction
361
00:15:31.200 --> 00:15:32.730
because it doesn't fall within one of the four
362
00:15:32.730 --> 00:15:34.860
categories outlined in Bruen prong one.
363
00:15:34.860 --> 00:15:36.360
And because the commonwealth hasn't shown
364
00:15:36.360 --> 00:15:38.670
a historical tradition of regulating similar to that.
365
00:15:38.670 --> 00:15:40.620
From everything I have found,
366
00:15:40.620 --> 00:15:43.530
although I don't think my burden is on that prong,
367
00:15:43.530 --> 00:15:45.630
switchblades were never banned
368
00:15:45.630 --> 00:15:48.060
prior to the 1950s in any state,
369
00:15:48.060 --> 00:15:49.500
let alone at the federal level.
370
00:15:49.500 --> 00:15:53.070
There may have been some evidence of concealed carry bans,
371
00:15:53.070 --> 00:15:54.990
but they were not absolutely prohibited.
372
00:15:54.990 --> 00:15:57.690
And given there are four exceptions
373
00:15:57.690 --> 00:15:59.490
to what constitute protected arms,
374
00:15:59.490 --> 00:16:01.950
and that includes, for example,
375
00:16:01.950 --> 00:16:04.950
regulations on classes of persons who can carry it, right?
376
00:16:04.950 --> 00:16:08.910
The language that Bruen uses is felons and the mentally ill,
377
00:16:08.910 --> 00:16:10.500
although I don't know that I'd phrase it that way.
378
00:16:10.500 --> 00:16:12.500
And the unusual, et cetera, right?
379
00:16:12.500 --> 00:16:15.330
If we go through that.
Or sensitive places.
380
00:16:15.330 --> 00:16:17.520
So why isn't the switchblade,
381
00:16:17.520 --> 00:16:21.000
the functional equivalent of the sort off shotgun
382
00:16:21.000 --> 00:16:25.610
that's quickly available and within a short distance
383
00:16:25.610 --> 00:16:28.473
has a broad spray?
384
00:16:29.610 --> 00:16:33.600
Well, I think I can answer that mechanically,
385
00:16:33.600 --> 00:16:36.120
but my sense is that your question is more,
386
00:16:36.120 --> 00:16:37.890
why isn't this dangerous and unusual
387
00:16:37.890 --> 00:16:40.140
much like a saw off shotgun might be.
388
00:16:40.140 --> 00:16:42.540
And I think my response would be, first,
389
00:16:42.540 --> 00:16:44.793
and correct me if that's not the question,
390
00:16:46.710 --> 00:16:50.400
under the Bruen formulation, in order to be an exception,
391
00:16:50.400 --> 00:16:53.313
an arm must be both dangerous and unusual.
392
00:16:54.600 --> 00:16:57.117
I think given that handguns
393
00:16:57.117 --> 00:16:59.640
are not considered dangerous under this formulation,
394
00:16:59.640 --> 00:17:01.590
it's quite hard to argue that switchblades
395
00:17:01.590 --> 00:17:04.320
are somehow more dangerous than handguns
396
00:17:04.320 --> 00:17:07.710
or electrical weapons, which from the decision in Ramirez,
397
00:17:07.710 --> 00:17:09.690
I think outlines a number of the dangers
398
00:17:09.690 --> 00:17:10.890
associated with sun guns.
But I think
399
00:17:10.890 --> 00:17:14.070
the firearms are not not considered dangerous.
400
00:17:14.070 --> 00:17:15.450
They're just not unusual.
401
00:17:15.450 --> 00:17:17.764
That's the purpose of a firearm.
402
00:17:17.764 --> 00:17:22.500
And I guess you would argue that switchblades are also,
403
00:17:22.500 --> 00:17:24.060
not that they're not dangerous,
404
00:17:24.060 --> 00:17:25.770
it's just that they're not unusual.
405
00:17:25.770 --> 00:17:27.843
And it's a conjunctive test.
406
00:17:29.310 --> 00:17:31.170
I would argue both that they're less dangerous
407
00:17:31.170 --> 00:17:32.820
than arms that have been-
Less dangerous
408
00:17:32.820 --> 00:17:33.653
is not the test.
409
00:17:33.653 --> 00:17:36.060
The test is dangerous and unusual, right?
410
00:17:36.060 --> 00:17:38.760
So it's dangerous.
Yes, of course.
411
00:17:38.760 --> 00:17:41.580
Any weapon can be dangerous.
But it's not unusual.
412
00:17:41.580 --> 00:17:43.228
Yes, essentially.
413
00:17:43.228 --> 00:17:45.693
I'm sorry, Chief.
414
00:17:46.560 --> 00:17:49.860
Okay, I thought you said,
415
00:17:49.860 --> 00:17:53.100
I'm still confused about who you think
416
00:17:53.100 --> 00:17:55.620
has the burden to show whether or not this is an arm.
417
00:17:55.620 --> 00:17:59.763
And I thought you said that you don't, but you did.
418
00:18:01.438 --> 00:18:03.330
And then I thought you said that you did have the burden.
419
00:18:03.330 --> 00:18:05.130
So could you just explain?
420
00:18:05.130 --> 00:18:07.740
Yes, I see where I was unclear.
421
00:18:07.740 --> 00:18:11.790
So I do think that prong one is the burden, so to speak,
422
00:18:11.790 --> 00:18:12.960
of the moving party.
423
00:18:12.960 --> 00:18:15.780
So that would be my burden to show that it is an arm.
424
00:18:15.780 --> 00:18:17.730
Where it is not my burden is to show
425
00:18:17.730 --> 00:18:19.680
that the regulation in question
426
00:18:19.680 --> 00:18:22.170
is consistent with the nation's historical tradition,
427
00:18:22.170 --> 00:18:24.810
which I think there was a prior question
428
00:18:24.810 --> 00:18:26.040
that sort of bled over into,
429
00:18:26.040 --> 00:18:27.840
is this a reasonable regulation?
430
00:18:27.840 --> 00:18:31.380
Which it's kind of a strange test
431
00:18:31.380 --> 00:18:34.020
because there's a bit of inquiry into the history
432
00:18:34.020 --> 00:18:35.730
of regulating and the purposes
433
00:18:35.730 --> 00:18:37.860
in the determination of whether something's an arm.
434
00:18:37.860 --> 00:18:41.610
But that question I think actually goes more to prong two.
435
00:18:41.610 --> 00:18:43.020
Is this a reasonable regulation?
436
00:18:43.020 --> 00:18:45.570
Because prong two requires the government
437
00:18:45.570 --> 00:18:48.810
to show that the regulation is consistent
438
00:18:48.810 --> 00:18:50.250
with the nation's historical tradition.
439
00:18:50.250 --> 00:18:53.070
And so that leads me to my second question, which is,
440
00:18:53.070 --> 00:18:55.890
you said that the Commonwealth didn't show that,
441
00:18:55.890 --> 00:18:59.280
but that's why you got the questions
442
00:18:59.280 --> 00:19:01.650
about why shouldn't this be a remand
443
00:19:01.650 --> 00:19:04.743
so that the Commonwealth has an opportunity to show that.
444
00:19:05.580 --> 00:19:08.880
And you said, "No, you have enough information."
445
00:19:08.880 --> 00:19:13.740
But I mean, that may not be the Commonwealth's view on it.
446
00:19:13.740 --> 00:19:14.573
It may not.
447
00:19:14.573 --> 00:19:18.420
I would just note that really,
448
00:19:18.420 --> 00:19:20.190
no party addressing that question
449
00:19:20.190 --> 00:19:22.530
has found any regulation whatsoever
450
00:19:22.530 --> 00:19:25.800
prior to 1950 that is akin to an absolute ban.
451
00:19:25.800 --> 00:19:27.930
It doesn't even really seem like the parties disagree
452
00:19:27.930 --> 00:19:31.590
that switchblades were not banned until the 1950s.
453
00:19:31.590 --> 00:19:33.900
So I'm not sure what benefit a remand would have
454
00:19:33.900 --> 00:19:36.153
solely on that prong.
455
00:19:37.320 --> 00:19:40.650
Can I ask you where that fits in in the Bruen analysis?
456
00:19:40.650 --> 00:19:43.320
Because when we get to Bruen
457
00:19:43.320 --> 00:19:45.150
and say we do this ourselves, right?
458
00:19:45.150 --> 00:19:47.520
And we don't remand it, we look to see
459
00:19:47.520 --> 00:19:51.900
what the functional equivalents of folding knives, I think.
460
00:19:51.900 --> 00:19:53.880
And if you look at the Ninth Circuit case,
461
00:19:53.880 --> 00:19:54.880
that's what they do.
462
00:19:56.598 --> 00:19:58.920
We look at the historically
463
00:19:58.920 --> 00:20:01.470
how the country has treated folded knives
464
00:20:01.470 --> 00:20:03.810
and then assisted folded knives.
465
00:20:03.810 --> 00:20:08.760
But then the next layer that you discuss
466
00:20:08.760 --> 00:20:11.790
is how it came to be in the 1950s,
467
00:20:11.790 --> 00:20:13.980
and I guess after West Side story
468
00:20:13.980 --> 00:20:16.350
that switchblades were banned.
469
00:20:16.350 --> 00:20:19.110
Does that fit into the reason for the ban?
470
00:20:19.110 --> 00:20:21.993
Does that fit into the Bruen analysis?
471
00:20:22.950 --> 00:20:24.750
And where does it fit in?
472
00:20:24.750 --> 00:20:27.300
It is a bit tangential, to be honest.
473
00:20:27.300 --> 00:20:29.375
I think it's-
It's interesting.
474
00:20:29.375 --> 00:20:30.937
Exactly.
But I don't know
475
00:20:30.937 --> 00:20:31.770
where it fits in legally.
476
00:20:31.770 --> 00:20:33.690
That's why I'm puzzled.
477
00:20:33.690 --> 00:20:37.173
I think my instincts is that it fits in prong two.
478
00:20:39.450 --> 00:20:43.860
But I tend to agree that it's more
479
00:20:43.860 --> 00:20:46.180
of an interesting tangent
480
00:20:47.460 --> 00:20:48.830
than fitting-
I don't even know
481
00:20:48.830 --> 00:20:51.330
if it's relevant because it didn't exist back then.
482
00:20:51.330 --> 00:20:53.220
And who cares under the Bruen?
483
00:20:53.220 --> 00:20:54.900
I think it's relevant under prong two
484
00:20:54.900 --> 00:20:56.490
in that prong two asks us
485
00:20:56.490 --> 00:20:59.520
to look at the nation's historical tradition of regulation,
486
00:20:59.520 --> 00:21:02.370
which is to say, how has this weapon
487
00:21:02.370 --> 00:21:03.720
been regulated through time?
488
00:21:03.720 --> 00:21:06.690
And I think the government has pointed towards some case law
489
00:21:06.690 --> 00:21:09.030
about the purpose of section 10B.
490
00:21:09.030 --> 00:21:11.220
There's the appeals court, Miller.
491
00:21:11.220 --> 00:21:15.030
Strangely, a number of relevant cases are all called Miller.
492
00:21:15.030 --> 00:21:17.010
And the Miller case just said
493
00:21:17.010 --> 00:21:19.380
the purpose of section 10B was to ban,
494
00:21:19.380 --> 00:21:21.697
I think the direct language is,
495
00:21:21.697 --> 00:21:24.930
"knives that are suited towards stabbing human beings."
496
00:21:24.930 --> 00:21:27.480
Aren't all knives suited to stab human beings?
497
00:21:27.480 --> 00:21:28.590
I would think so, yes.
498
00:21:28.590 --> 00:21:31.320
But I think-
Let me ask you,
499
00:21:31.320 --> 00:21:33.510
and then do we get into the reasons
500
00:21:33.510 --> 00:21:37.920
surrounding the statute which are not all that pleasant
501
00:21:37.920 --> 00:21:41.460
in their ethnic and racial components?
502
00:21:41.460 --> 00:21:42.870
I think that's correct,
503
00:21:42.870 --> 00:21:45.870
because there is case law saying
504
00:21:45.870 --> 00:21:47.550
the reason for the ban is this.
505
00:21:47.550 --> 00:21:48.630
They are dangerous.
506
00:21:48.630 --> 00:21:51.900
But if we look into why they were banned,
507
00:21:51.900 --> 00:21:52.980
we ask ourselves,
508
00:21:52.980 --> 00:21:54.570
well, why did people think they were dangerous?
509
00:21:54.570 --> 00:21:56.340
Was that an evidence-based conclusion?
510
00:21:56.340 --> 00:21:57.780
Was that realistic,
511
00:21:57.780 --> 00:21:59.970
or was that based solely on stereotyping?
512
00:21:59.970 --> 00:22:03.450
But you think this fits in, at least in some respects,
513
00:22:03.450 --> 00:22:05.280
into the Bruen analysis?
514
00:22:05.280 --> 00:22:06.660
Not neatly.
515
00:22:06.660 --> 00:22:09.240
I think it is relevant to prong two
516
00:22:09.240 --> 00:22:11.250
when we are analyzing whether it's consistent
517
00:22:11.250 --> 00:22:13.800
with the nation's historical tradition,
518
00:22:13.800 --> 00:22:15.930
but I don't think it's dispositive,
519
00:22:15.930 --> 00:22:17.250
if that makes sense.
Right, so then if this case
520
00:22:17.250 --> 00:22:19.410
were to go up, then the issue would become,
521
00:22:19.410 --> 00:22:22.380
well, why did you look at the 1950s legislation?
522
00:22:22.380 --> 00:22:25.680
You should have stuck with your tri-corned hat
523
00:22:25.680 --> 00:22:27.750
and looked at the founding, correct?
524
00:22:27.750 --> 00:22:29.490
That is our position.
All right.
525
00:22:29.490 --> 00:22:32.430
Well, and isn't it relevant that until the 1950s,
526
00:22:32.430 --> 00:22:34.200
so far as the government has shown,
527
00:22:34.200 --> 00:22:36.480
these weapons were not regulated?
528
00:22:36.480 --> 00:22:37.560
Yes, it is relevant.
529
00:22:37.560 --> 00:22:38.520
That is why the government
530
00:22:38.520 --> 00:22:40.290
has not met its burden under prong two.
531
00:22:40.290 --> 00:22:43.140
And that is why the statute is facially unconstitutional.
532
00:22:44.100 --> 00:22:46.170
Okay, thank you very much.
533
00:22:46.170 --> 00:22:47.003
Thank you.
534
00:22:47.003 --> 00:22:47.880
We would ask that you reverse the decision
535
00:22:47.880 --> 00:22:50.185
in the trial court and overturn their conviction.
536
00:22:50.185 --> 00:22:51.083
Thank you.
Thank you.
537
00:22:52.770 --> 00:22:54.020
Okay, Attorney Martino.
538
00:22:57.510 --> 00:22:58.343
Good morning.
539
00:22:58.343 --> 00:22:59.760
May it please the court, Elisabeth Martino,
540
00:22:59.760 --> 00:23:02.580
Assistant District Attorney on behalf of the Commonwealth,
541
00:23:02.580 --> 00:23:05.040
and the Commonwealth is asking that the court affirm
542
00:23:05.040 --> 00:23:07.800
the trial judge's denial
543
00:23:07.800 --> 00:23:09.930
of the defendant's motion to dismiss.
544
00:23:09.930 --> 00:23:13.020
And you're also asking for a remand, right?
545
00:23:13.020 --> 00:23:16.590
Our primary position is that this court can affirm
546
00:23:16.590 --> 00:23:18.840
the denial of the motion to dismiss.
547
00:23:18.840 --> 00:23:22.203
So assuming that that is not gonna happen,
548
00:23:23.294 --> 00:23:25.860
what would you do on remand
549
00:23:25.860 --> 00:23:29.070
since you've now joined the AG and asking for it?
550
00:23:29.070 --> 00:23:31.590
So just for clarification purposes,
551
00:23:31.590 --> 00:23:36.480
we did join as that remand could be an alternative remedy,
552
00:23:36.480 --> 00:23:39.300
but that, first and foremost, we're arguing
553
00:23:39.300 --> 00:23:41.820
that affirmance would be proper on this record.
554
00:23:41.820 --> 00:23:45.226
And that's because the defendant in this case did-
555
00:23:45.226 --> 00:23:47.400
Can you answer why a remand
556
00:23:47.400 --> 00:23:50.790
would be appropriate as a secondary option?
557
00:23:50.790 --> 00:23:52.080
Of course.
558
00:23:52.080 --> 00:23:55.020
The defendant has the burden of showing
559
00:23:55.020 --> 00:23:59.700
that the weapon in question is protected,
560
00:23:59.700 --> 00:24:01.440
covered by the Second Amendment.
561
00:24:01.440 --> 00:24:03.240
Where does that come in Bruen?
562
00:24:03.240 --> 00:24:04.710
What page does Bruen say that?
563
00:24:04.710 --> 00:24:05.543
Yep.
564
00:24:09.300 --> 00:24:11.280
It's not explicitly stated,
565
00:24:11.280 --> 00:24:14.970
but in Bruen and in Heller and in McDonald,
566
00:24:14.970 --> 00:24:19.970
the Supreme Court says that the covered weapon,
567
00:24:20.550 --> 00:24:22.560
the protected weapon by the Second Amendment
568
00:24:22.560 --> 00:24:26.130
are those that are in common use today for self-defense.
569
00:24:26.130 --> 00:24:29.370
And it's a prima fascia showing
570
00:24:29.370 --> 00:24:32.280
by the movement, the proponent.
571
00:24:32.280 --> 00:24:33.900
That's the part that I'm wondering about.
572
00:24:33.900 --> 00:24:35.340
Where is that in the case law?
573
00:24:35.340 --> 00:24:36.630
Yeah, so it's-
574
00:24:36.630 --> 00:24:39.120
Prima fascia keep showing by the movement.
575
00:24:39.120 --> 00:24:40.620
Yeah.
576
00:24:40.620 --> 00:24:42.690
Well, again, it's not quite explicit,
577
00:24:42.690 --> 00:24:47.670
and I think there's a little bit of a move,
578
00:24:47.670 --> 00:24:50.520
ability to argue both ways.
579
00:24:50.520 --> 00:24:54.330
But I think that most courts are accepting that it is,
580
00:24:54.330 --> 00:24:58.050
most lower courts, that it is the movement.
581
00:24:58.050 --> 00:24:59.970
And I think even an argument,
582
00:24:59.970 --> 00:25:02.100
my sister did say, I would accept
583
00:25:02.100 --> 00:25:05.190
that it is our initial threshold showing,
584
00:25:05.190 --> 00:25:06.810
the defendant's threshold showing
585
00:25:06.810 --> 00:25:09.207
that the weapon is covered by the Second Amendment.
586
00:25:09.207 --> 00:25:11.073
And under the First Amendment,
587
00:25:12.420 --> 00:25:14.730
whose burden is it to show
588
00:25:14.730 --> 00:25:17.283
that something is not covered speech?
589
00:25:19.500 --> 00:25:20.640
I don't know off the top of my head.
590
00:25:20.640 --> 00:25:22.380
I would argue-
Would that be an appropriate
591
00:25:22.380 --> 00:25:24.123
analogy for the Second Amendment?
592
00:25:26.820 --> 00:25:28.950
I mean, yes, I think probably, because the rights,
593
00:25:28.950 --> 00:25:31.860
and again, I am saying probably and hedging a little bit
594
00:25:31.860 --> 00:25:34.800
because I haven't really analyzed that,
595
00:25:34.800 --> 00:25:36.600
but I would think yes, as both the First
596
00:25:36.600 --> 00:25:38.913
and Second Amendment are co-equal rights.
597
00:25:41.640 --> 00:25:43.590
And I think the language of Bruen,
598
00:25:43.590 --> 00:25:46.170
and I just find it for your honors,
599
00:25:46.170 --> 00:25:47.793
but it is that there's,
600
00:25:48.662 --> 00:25:53.662
once the movement has established that a prima fascia,
601
00:25:56.430 --> 00:25:59.550
that the weapon is covered is protected
602
00:25:59.550 --> 00:26:01.980
by the Second Amendment, then the burden shifts
603
00:26:01.980 --> 00:26:06.300
to the government to show a national history
604
00:26:06.300 --> 00:26:08.940
in its laws of regulating the weapon.
605
00:26:08.940 --> 00:26:11.610
So do you think the remand would be required
606
00:26:11.610 --> 00:26:16.297
as a secondary option for the defendant
607
00:26:17.580 --> 00:26:19.590
in this case to show that it's an arm?
608
00:26:19.590 --> 00:26:21.990
Or do you agree that it's been shown?
609
00:26:21.990 --> 00:26:24.060
No, no, that's our primary contention
610
00:26:24.060 --> 00:26:25.740
is that it has not been shown
611
00:26:25.740 --> 00:26:28.560
to be a weapon in common use today for self-defense.
612
00:26:28.560 --> 00:26:32.193
Well, aren't we using the Heller definition of arm?
613
00:26:33.300 --> 00:26:37.388
Which was reaffirmed in Bruen, right?
614
00:26:37.388 --> 00:26:39.990
So I don't get how we don't get past that,
615
00:26:39.990 --> 00:26:41.373
how that's an issue here.
616
00:26:42.477 --> 00:26:44.400
If you read, you of course have,
617
00:26:44.400 --> 00:26:47.130
and as counsel explained earlier,
618
00:26:47.130 --> 00:26:49.680
the definition of arm is anything carried on the person
619
00:26:49.680 --> 00:26:51.393
to protect oneself, essentially.
620
00:26:52.320 --> 00:26:53.880
Well, I think that's a dangerous
621
00:26:53.880 --> 00:26:55.650
definition, right?
Well, it's not mine.
622
00:26:55.650 --> 00:26:56.520
It's Heller's.
623
00:26:56.520 --> 00:26:58.978
I didn't write it.
Well, in Heller,
624
00:26:58.978 --> 00:27:02.310
to be clear, in Heller, nobody disputed that the handgun,
625
00:27:02.310 --> 00:27:04.320
it wasn't the first prong that was disputed,
626
00:27:04.320 --> 00:27:05.790
neither in Heller or Bruen.
627
00:27:05.790 --> 00:27:07.140
So it wasn't really litigated.
628
00:27:07.140 --> 00:27:09.510
The text. doesn't say firearm, it says arm.
629
00:27:09.510 --> 00:27:10.410
Absolutely.
630
00:27:10.410 --> 00:27:13.053
But there was no question that the firearm,
631
00:27:13.980 --> 00:27:17.070
it wasn't disputed that a firearm was a weapon
632
00:27:17.070 --> 00:27:18.090
covered by the Second Amendment
633
00:27:18.090 --> 00:27:20.520
because of its common use today in self-defense.
634
00:27:20.520 --> 00:27:22.920
Tell me, of all these knife cases,
635
00:27:22.920 --> 00:27:25.590
which are a lot more than I thought they'd be,
636
00:27:25.590 --> 00:27:29.010
that have been decided by lower courts and circuit courts,
637
00:27:29.010 --> 00:27:31.773
anyone that has rejected a knife as an arm?
638
00:27:32.730 --> 00:27:36.130
Right, so the only case that we have post-Bruen
639
00:27:37.020 --> 00:27:39.510
is the Ninth Circuit Teter case, which is cited
640
00:27:39.510 --> 00:27:43.200
in the knife amici and the CDL amici.
641
00:27:43.200 --> 00:27:45.960
That case is actually,
642
00:27:45.960 --> 00:27:48.330
there's been a petition for rehearing,
643
00:27:48.330 --> 00:27:49.950
and it was joined by 16 states
644
00:27:49.950 --> 00:27:52.920
and the Districts of Columbia, including Massachusetts,
645
00:27:52.920 --> 00:27:56.670
because of the sort of summary way
646
00:27:56.670 --> 00:28:00.240
that the Ninth Circuit treated the two-part test
647
00:28:00.240 --> 00:28:03.600
without analyzing first and carefully the first prong,
648
00:28:03.600 --> 00:28:05.700
which is whether these butterfly knives
649
00:28:05.700 --> 00:28:07.890
meet the definition of an arm,
650
00:28:07.890 --> 00:28:09.780
and are thus covered under the Second Amendment?
651
00:28:09.780 --> 00:28:11.460
If you think Heller is too broad,
652
00:28:11.460 --> 00:28:13.860
what definition of arm should we apply?
653
00:28:13.860 --> 00:28:16.590
Yeah, it's the one I think that is put forth
654
00:28:16.590 --> 00:28:18.330
both in the Commonwealth's brief
655
00:28:18.330 --> 00:28:21.210
and in the Attorney General's brief,
656
00:28:21.210 --> 00:28:23.730
which is that it must be in common use today
657
00:28:23.730 --> 00:28:25.740
for the core purpose of self-defense.
658
00:28:25.740 --> 00:28:30.740
And what's wrong about, or why the weapon and issue here,
659
00:28:31.050 --> 00:28:33.300
the switchblade does not fall under that definition
660
00:28:33.300 --> 00:28:36.270
is the very nature of the weapon should be considered.
661
00:28:36.270 --> 00:28:39.240
It's circular though, 'cause you've banned them.
662
00:28:39.240 --> 00:28:40.830
No, no, but I'm not talking about
663
00:28:40.830 --> 00:28:41.790
the numbers of ownership.
664
00:28:41.790 --> 00:28:43.650
I'm talking about the nature of the weapon,
665
00:28:43.650 --> 00:28:47.940
which the court said, in Bruen and Heller and McDonald,
666
00:28:47.940 --> 00:28:51.270
that you look at the nature and the use of the weapon.
667
00:28:51.270 --> 00:28:53.850
So a switchblade, by its very nature,
668
00:28:53.850 --> 00:28:58.850
is a lethal weapon whose lethality is concealed
669
00:28:59.100 --> 00:29:02.310
until the very second it's used to then injure.
670
00:29:02.310 --> 00:29:05.613
Alright, so is the buck knife that's in my toolbox.
671
00:29:07.980 --> 00:29:10.200
Well, no, I'm sorry.
672
00:29:10.200 --> 00:29:11.340
The buck knife, I don't know about.
673
00:29:11.340 --> 00:29:12.720
And this is again-
A folded knife.
674
00:29:12.720 --> 00:29:14.220
You can use it to cut shingles,
675
00:29:14.220 --> 00:29:15.540
or you could use it to stab people.
676
00:29:15.540 --> 00:29:17.070
Right, but you have to, you know,
677
00:29:17.070 --> 00:29:19.170
the difference, I think, is that you have to unfold it
678
00:29:19.170 --> 00:29:20.460
as opposed to the switchblade.
679
00:29:20.460 --> 00:29:22.800
And so two things to answer your question.
680
00:29:22.800 --> 00:29:24.120
One is that-
681
00:29:24.120 --> 00:29:25.320
Well, wait, sorry.
682
00:29:25.320 --> 00:29:26.340
Just technically.
683
00:29:26.340 --> 00:29:29.040
A switchblade, you also have to unfold.
684
00:29:29.040 --> 00:29:32.130
You just have a spring loaded mechanism to do it
685
00:29:32.130 --> 00:29:35.040
as opposed to using the flick of the wrist.
686
00:29:35.040 --> 00:29:36.780
Well, these are all sort of factual questions
687
00:29:36.780 --> 00:29:39.090
that aren't borne out in the record, which I think is-
688
00:29:39.090 --> 00:29:42.090
That really something that the government's disputing?
689
00:29:42.090 --> 00:29:43.500
No, I think that at this point,
690
00:29:43.500 --> 00:29:46.590
I think that this court can decide as a matter of law
691
00:29:46.590 --> 00:29:49.320
for the Commonwealth, but not against the Commonwealth.
692
00:29:49.320 --> 00:29:50.580
And this is why.
693
00:29:50.580 --> 00:29:52.170
Because the defendant pled guilty
694
00:29:52.170 --> 00:29:54.810
to having a spring-operated switchblade,
695
00:29:54.810 --> 00:29:59.130
which, as I'm pointing out, is by its nature non-defensive.
696
00:29:59.130 --> 00:30:02.552
The lethality is concealed until the very last second.
697
00:30:02.552 --> 00:30:06.810
I don't know that I can join your rationale, okay?
698
00:30:06.810 --> 00:30:09.030
Just bear with me for a minute.
699
00:30:09.030 --> 00:30:10.620
Yes, your honor.
Say you have the buck knife
700
00:30:10.620 --> 00:30:13.290
that Justice Gaziano is talking about,
701
00:30:13.290 --> 00:30:15.450
and you're being attacked.
702
00:30:15.450 --> 00:30:18.420
Do you want the knife to defend yourself,
703
00:30:18.420 --> 00:30:21.570
that you're already in the midst of panic and angst
704
00:30:21.570 --> 00:30:24.270
that you've gotta try to figure out how to unfold it?
705
00:30:24.270 --> 00:30:26.130
Or do you want the knife that you can hit a button,
706
00:30:26.130 --> 00:30:29.640
and it'll be deployed if you have to defend yourself.
707
00:30:29.640 --> 00:30:30.840
So respectfully, your honor,
708
00:30:30.840 --> 00:30:35.070
I think that self-defense involves many things,
709
00:30:35.070 --> 00:30:39.900
including trying to avoid actually hurting somebody.
710
00:30:39.900 --> 00:30:41.400
That's retreat.
711
00:30:41.400 --> 00:30:44.970
Self-defense, the idea of trying to figure out
712
00:30:44.970 --> 00:30:48.090
whether or not this is in common use for self-defense.
713
00:30:48.090 --> 00:30:50.190
That it would seem to militate
714
00:30:50.190 --> 00:30:52.950
in favor that it is for self-defense
715
00:30:52.950 --> 00:30:55.680
the more quickly you can deploy it.
716
00:30:55.680 --> 00:30:58.050
But I think the reason that the handgun
717
00:30:58.050 --> 00:31:01.590
is the quintessential weapon of self-defense
718
00:31:01.590 --> 00:31:04.170
favored by Americans throughout the country today
719
00:31:04.170 --> 00:31:05.557
is its deterrent value.
720
00:31:05.557 --> 00:31:07.200
"Stop or I'll shoot,"
721
00:31:07.200 --> 00:31:10.260
which is fundamentally different from the switchblade,
722
00:31:10.260 --> 00:31:12.150
which is I don't got nothing,
723
00:31:12.150 --> 00:31:14.580
until somebody comes and it's immediately lethal.
724
00:31:14.580 --> 00:31:16.680
It's the concealed aspect of it.
725
00:31:16.680 --> 00:31:18.600
It's the weapon of ambush,
726
00:31:18.600 --> 00:31:20.820
which is why it is fundamentally different
727
00:31:20.820 --> 00:31:23.880
than the handgun or the knife you may bear on your hip,
728
00:31:23.880 --> 00:31:28.350
which is self-defense because it is to deter violence.
729
00:31:28.350 --> 00:31:30.670
So one of the things in Heller was that
730
00:31:32.310 --> 00:31:36.510
whenever the state statute at issue required
731
00:31:36.510 --> 00:31:40.740
the firearm to be disassembled in the home,
732
00:31:40.740 --> 00:31:43.680
and I think it was the majority decision
733
00:31:43.680 --> 00:31:48.680
that said that that made it less helpful for self-defense.
734
00:31:48.960 --> 00:31:51.390
So I'm wondering why the spring-loaded
735
00:31:51.390 --> 00:31:54.900
mechanism isn't similar.
736
00:31:54.900 --> 00:31:57.630
the ban on the spring loaded mechanism
737
00:31:57.630 --> 00:31:59.670
isn't similar to the requirement
738
00:31:59.670 --> 00:32:02.250
that the firearm be disassembled in the home.
739
00:32:02.250 --> 00:32:03.420
Well, it's a point well-taken, your honor.
740
00:32:03.420 --> 00:32:04.710
But in the same time, in Heller,
741
00:32:04.710 --> 00:32:07.230
the plaintiff there did not say
742
00:32:07.230 --> 00:32:09.660
that he was disputing the use of trigger locks
743
00:32:09.660 --> 00:32:14.580
and ways to store your weapon to keep it safe, right?
744
00:32:14.580 --> 00:32:16.740
But keeping it completely disassembled
745
00:32:16.740 --> 00:32:17.940
and the requirement of the law
746
00:32:17.940 --> 00:32:19.290
to keep it completely disassembled
747
00:32:19.290 --> 00:32:21.120
rendered it essentially inoperable.
748
00:32:21.120 --> 00:32:25.140
But they were not challenging safety mechanisms,
749
00:32:25.140 --> 00:32:27.030
trigger locks, things that keep it safe
750
00:32:27.030 --> 00:32:28.860
from the child walking in.
751
00:32:28.860 --> 00:32:30.210
Think of the switchblade.
752
00:32:30.210 --> 00:32:31.710
It does not appear lethal.
753
00:32:31.710 --> 00:32:33.030
It has no deterrent effect.
754
00:32:33.030 --> 00:32:34.680
And in fact, you leave it on the table
755
00:32:34.680 --> 00:32:36.930
and a 4-year-old comes in and plays with it.
756
00:32:36.930 --> 00:32:39.630
Under your logic, that'd be okay
757
00:32:39.630 --> 00:32:43.530
to be in concealable handguns,
758
00:32:43.530 --> 00:32:46.080
and everybody would have to carry a long gun
759
00:32:46.080 --> 00:32:49.620
or a long rifle for self-defense, right?
760
00:32:49.620 --> 00:32:51.780
Well, I think-
'Cause quintessentially,
761
00:32:51.780 --> 00:32:54.420
a firearm's concealed on people,
762
00:32:54.420 --> 00:32:55.860
or a handgun is, at least.
763
00:32:55.860 --> 00:32:56.970
Well, until it's pulled out,
764
00:32:56.970 --> 00:33:00.003
and then nature is immediately apparent as a legal weapon.
765
00:33:00.003 --> 00:33:02.943
Yeah, I just don't get your distinction between,
766
00:33:04.155 --> 00:33:05.850
and we look at the rest of the country
767
00:33:05.850 --> 00:33:09.120
and the rest of the country has no ban on switchblades,
768
00:33:09.120 --> 00:33:10.590
or most of the country.
769
00:33:10.590 --> 00:33:13.470
Well, respectfully, I think there are many,
770
00:33:13.470 --> 00:33:16.620
many jurisdictions that still do.
771
00:33:16.620 --> 00:33:18.120
The AG listed them out helpfully.
772
00:33:18.120 --> 00:33:20.970
But I think, first and foremost,
773
00:33:20.970 --> 00:33:23.460
it's the Commonwealth's contention that as a matter of law,
774
00:33:23.460 --> 00:33:25.830
the defendant has failed to show that this weapon
775
00:33:25.830 --> 00:33:28.290
is a weapon commonly used in self-defense today.
776
00:33:28.290 --> 00:33:31.050
It is the antithesis of self-defense
777
00:33:31.050 --> 00:33:32.550
and in fact is a concealed,
778
00:33:32.550 --> 00:33:34.770
the purpose of it as the lethal weapon is concealed
779
00:33:34.770 --> 00:33:38.070
until the last second where a press of the button
780
00:33:38.070 --> 00:33:40.830
immediately renders it a lethal weapon.
781
00:33:40.830 --> 00:33:43.590
And that it's no deterrent value, unlike the handgun,
782
00:33:43.590 --> 00:33:46.890
which in the cases, the only binding precedent
783
00:33:46.890 --> 00:33:51.810
on this court, handgun is the self-defense weapon of choice.
784
00:33:51.810 --> 00:33:53.490
I think it goes to the point that-
785
00:33:53.490 --> 00:33:56.780
I think you're reading self-defense narrowly as well,
786
00:33:56.780 --> 00:34:00.000
as Justice Georges posited to you.
787
00:34:00.000 --> 00:34:01.140
It's not just deterrence.
788
00:34:01.140 --> 00:34:04.290
It's you're being attacked and you need a weapon.
789
00:34:04.290 --> 00:34:08.610
Yeah, any weapon can honestly be defined
790
00:34:08.610 --> 00:34:10.380
as a weapon of self-defense.
791
00:34:10.380 --> 00:34:12.447
A rocket launcher can be used in self-defense.
792
00:34:12.447 --> 00:34:15.090
But then we get into the other unusual,
793
00:34:15.090 --> 00:34:18.717
or we get into the other parts of the exception.
794
00:34:18.717 --> 00:34:20.220
We do, but the-
Where if you go through
795
00:34:20.220 --> 00:34:22.080
the statute that we have,
796
00:34:22.080 --> 00:34:23.610
some of those items on the statute
797
00:34:23.610 --> 00:34:28.080
probably wouldn't hold water under the rest of the statute.
798
00:34:28.080 --> 00:34:30.300
But this might be different.
799
00:34:30.300 --> 00:34:33.870
Yes, I think that the record, as it stands,
800
00:34:33.870 --> 00:34:36.120
does show that this is not the type of weapon today
801
00:34:36.120 --> 00:34:37.680
commonly used for self-defense.
802
00:34:37.680 --> 00:34:39.180
That's the main argument.
803
00:34:39.180 --> 00:34:41.880
If the court should disagree and think that-
804
00:34:41.880 --> 00:34:44.820
Oh, that we know, because it's the same question
805
00:34:44.820 --> 00:34:48.510
that began your argument from Justice Wendlandt,
806
00:34:48.510 --> 00:34:50.460
or that was asked of your sister.
807
00:34:50.460 --> 00:34:54.000
We just have a number of how many are manufactured
808
00:34:54.000 --> 00:34:56.400
that doesn't tell us whether or not
809
00:34:56.400 --> 00:34:59.550
people are commonly using this for self-defense.
810
00:34:59.550 --> 00:35:01.770
It certainly doesn't tell you that in Massachusetts,
811
00:35:01.770 --> 00:35:03.120
'cause you can't have 'em.
812
00:35:03.120 --> 00:35:08.120
But, I mean, it seems that you need a record to develop it.
813
00:35:08.400 --> 00:35:10.560
You've made a couple of statements that talked about
814
00:35:10.560 --> 00:35:13.230
what the only purpose of switchblades are.
815
00:35:13.230 --> 00:35:14.880
Well, what's the evidence of that?
816
00:35:14.880 --> 00:35:15.870
Where is that from?
817
00:35:15.870 --> 00:35:16.710
We don't know.
818
00:35:16.710 --> 00:35:19.650
And when Judge Stanton, wouldn't that be a wonderful thing
819
00:35:19.650 --> 00:35:22.080
to have in front of Judge Stanton to talk about
820
00:35:22.080 --> 00:35:25.050
all of these different permutations and implications?
821
00:35:25.050 --> 00:35:26.760
Yes, your honor, which is why I think
822
00:35:26.760 --> 00:35:30.030
with the AG's brief, we did join that
823
00:35:30.030 --> 00:35:31.020
as an alternative remedy.
824
00:35:31.020 --> 00:35:33.450
It's not, I don't think, necessary on this record
825
00:35:33.450 --> 00:35:36.000
because of the nature of the switchblade,
826
00:35:36.000 --> 00:35:37.530
but should the court disagree,
827
00:35:37.530 --> 00:35:41.370
I think a remand could be useful under the circumstances,
828
00:35:41.370 --> 00:35:44.790
especially where this case can have
829
00:35:44.790 --> 00:35:48.363
broad implications in the Commonwealth.
830
00:35:49.680 --> 00:35:52.050
If, for example, the court were to follow
831
00:35:52.050 --> 00:35:53.730
the Ninth Circuit in the Teter case
832
00:35:53.730 --> 00:35:56.460
with the butterfly knives and find as a matter of law
833
00:35:56.460 --> 00:35:59.400
all bladed weapons are covered by the Second Amendment,
834
00:35:59.400 --> 00:36:02.100
that case has been used now to launch
835
00:36:02.100 --> 00:36:06.270
many, many, many attacks on legislation of assault rifles
836
00:36:06.270 --> 00:36:08.100
and lots of different weapons
837
00:36:08.100 --> 00:36:09.930
throughout the federal court system.
838
00:36:09.930 --> 00:36:10.860
I might have missed that in that case.
839
00:36:10.860 --> 00:36:14.100
Did it say all bladed weapons or just say butterfly knives?
840
00:36:14.100 --> 00:36:16.260
It said butterfly knife is ablated weapon
841
00:36:16.260 --> 00:36:17.880
and as such is covered by the Second Amendment
842
00:36:17.880 --> 00:36:20.160
without any analysis as to the weapon itself.
843
00:36:20.160 --> 00:36:21.630
So if there is a remand,
844
00:36:21.630 --> 00:36:24.420
then defendant meets its burden,
845
00:36:24.420 --> 00:36:26.280
if indeed it is the defendant's burden
846
00:36:26.280 --> 00:36:31.280
on whether it's an arm on national historic tradition.
847
00:36:31.620 --> 00:36:32.970
Do you look at anything
848
00:36:32.970 --> 00:36:35.553
after the passage of the 14th amendment?
849
00:36:37.770 --> 00:36:40.110
I think the relevant inquiry is between,
850
00:36:40.110 --> 00:36:43.590
yeah, the founding and the passage of this.
851
00:36:43.590 --> 00:36:44.580
Oh, well, the Second Amendment
852
00:36:44.580 --> 00:36:48.720
and possibly into the 14th Amendment.
853
00:36:48.720 --> 00:36:50.370
And I think in terms of-
854
00:36:50.370 --> 00:36:51.990
I think post-1868.
855
00:36:51.990 --> 00:36:54.180
Does that matter?
No.
856
00:36:54.180 --> 00:36:55.980
What about the reason for the ban?
857
00:36:55.980 --> 00:36:56.910
Does that matter?
858
00:36:56.910 --> 00:36:57.743
I'm sorry, your Honor?
859
00:36:57.743 --> 00:37:00.180
The reason for the ban in the 1950s.
860
00:37:00.180 --> 00:37:02.880
So I think that that can only be relevant,
861
00:37:02.880 --> 00:37:05.490
and I agree with my sister with the term tangentially.
862
00:37:05.490 --> 00:37:09.090
I think it can have some relevance to show that
863
00:37:09.090 --> 00:37:12.480
I don't think that spring-assisted switchblades
864
00:37:12.480 --> 00:37:15.300
were common in the 17 and 1800s,
865
00:37:15.300 --> 00:37:18.690
and that that is a modern development of knives.
866
00:37:18.690 --> 00:37:22.230
And as that modern development proceeded a rise,
867
00:37:22.230 --> 00:37:23.970
the legislature saw a rise in crime
868
00:37:23.970 --> 00:37:28.740
and then decided to outlaw that type of weapon,
869
00:37:28.740 --> 00:37:32.100
so to the extent that a court looks at,
870
00:37:32.100 --> 00:37:34.680
was this in common use at the time,
871
00:37:34.680 --> 00:37:37.650
and is this just a modern development of that?
872
00:37:37.650 --> 00:37:40.800
I think you can look at sort of that,
873
00:37:40.800 --> 00:37:43.620
yes, it is a modern development of pocket knives
874
00:37:43.620 --> 00:37:45.480
that were in existence in the 17 and 1800s,
875
00:37:45.480 --> 00:37:49.590
but as that modern development came about,
876
00:37:49.590 --> 00:37:51.870
legislatures noticed that they were dangerous
877
00:37:51.870 --> 00:37:53.520
and limited their use.
878
00:37:53.520 --> 00:37:55.320
Does that make sense?
879
00:37:55.320 --> 00:37:59.790
But in terms of does it fit into the nation's
880
00:37:59.790 --> 00:38:02.700
history of legislation?
881
00:38:02.700 --> 00:38:04.890
So meeting the Commonwealth burden?
882
00:38:04.890 --> 00:38:08.880
No, because it's not about the relevant time period.
883
00:38:08.880 --> 00:38:12.750
Okay, so the remand would only be about the question
884
00:38:12.750 --> 00:38:17.750
whether a spring-loaded pocket knife is an arm?
885
00:38:18.810 --> 00:38:19.643
No, your Honor.
886
00:38:19.643 --> 00:38:22.350
It would also be about the relevant
887
00:38:22.350 --> 00:38:23.730
historical legislation.
888
00:38:23.730 --> 00:38:27.570
And in footnote, six of the Bruen decision,
889
00:38:27.570 --> 00:38:31.290
the U.S. Supreme Court said that trial judges
890
00:38:31.290 --> 00:38:35.370
at the evidentiary level are tasked with determining,
891
00:38:35.370 --> 00:38:37.380
one, whether a weapon is in common use
892
00:38:37.380 --> 00:38:38.640
for self-defense today.
893
00:38:38.640 --> 00:38:43.640
And two, whether the historical legislation is analogous,
894
00:38:43.950 --> 00:38:45.720
is a historical analog.
895
00:38:45.720 --> 00:38:46.813
So they specifically said-
896
00:38:46.813 --> 00:38:48.630
Right, but I'm just saying,
897
00:38:48.630 --> 00:38:51.333
for this particular weapon,
898
00:38:52.440 --> 00:38:55.350
you're not aware standing here today
899
00:38:55.350 --> 00:38:57.810
of any evidence before 1950
900
00:38:57.810 --> 00:39:00.453
that this was in any way prohibited?
901
00:39:02.760 --> 00:39:04.830
No, but I think that that's because-
902
00:39:04.830 --> 00:39:06.390
And you've looked?
903
00:39:06.390 --> 00:39:08.880
Yes, but I think because this weapon
904
00:39:08.880 --> 00:39:13.880
is a modern development of pocket knives,
905
00:39:14.010 --> 00:39:16.320
so there is a little bit of a difference.
906
00:39:16.320 --> 00:39:19.140
I do think that historical analogs exist
907
00:39:19.140 --> 00:39:22.350
and are cited in Bruen itself of limiting
908
00:39:22.350 --> 00:39:24.780
concealed carry of weapons
909
00:39:24.780 --> 00:39:26.940
and especially certain classes of weapons
910
00:39:26.940 --> 00:39:29.730
that were considered sort of like not honorable weapons,
911
00:39:29.730 --> 00:39:31.890
dirks, daggers, Bowie knives.
912
00:39:31.890 --> 00:39:35.880
And I think that the switchblade falls
913
00:39:35.880 --> 00:39:38.505
into these sort of different kinds of knives
914
00:39:38.505 --> 00:39:43.080
that were regulated from the founding.
915
00:39:43.080 --> 00:39:45.870
And also, the switchblade,
916
00:39:45.870 --> 00:39:48.420
the nature of the switchblade as a concealed weapon,
917
00:39:48.420 --> 00:39:50.160
I think the historical analogs,
918
00:39:50.160 --> 00:39:53.070
which are in Bruen in Massachusetts and New Jersey
919
00:39:53.070 --> 00:39:55.030
of limiting concealed carry
920
00:39:55.920 --> 00:39:59.037
can be applicable to the case here.
921
00:39:59.037 --> 00:40:02.760
But is 10B a prohibition on concealing a switchblade?
922
00:40:02.760 --> 00:40:04.410
Well, I think the reason it's an analog
923
00:40:04.410 --> 00:40:06.780
is because a switchblade, in of itself,
924
00:40:06.780 --> 00:40:09.690
is a weapon of concealment.
925
00:40:09.690 --> 00:40:11.010
'Cause the blade is concealed?
926
00:40:11.010 --> 00:40:12.760
Yes.
Just like a pocket knife?
927
00:40:13.680 --> 00:40:16.620
Yes, but I think, yeah, I think the difference here is,
928
00:40:16.620 --> 00:40:20.850
and we're looking very granularly under this test.
929
00:40:20.850 --> 00:40:24.510
And I think importantly, because, and I will,
930
00:40:24.510 --> 00:40:26.160
with the permission of the court,
931
00:40:27.540 --> 00:40:31.470
perhaps include the petition for rehearing under Teter
932
00:40:31.470 --> 00:40:33.750
because it shows it's a good summary
933
00:40:33.750 --> 00:40:37.440
of all of the challenges to all these different types
934
00:40:37.440 --> 00:40:40.230
of legislation based on Teter out of the Ninth Circuit
935
00:40:40.230 --> 00:40:42.780
because of it was such a broad decision.
936
00:40:42.780 --> 00:40:45.720
All bladed weapons are covered by the Second Amendment
937
00:40:45.720 --> 00:40:47.490
without a granular analysis
938
00:40:47.490 --> 00:40:51.210
of the actual butterfly knife in question.
939
00:40:51.210 --> 00:40:53.100
This was a conditional plea, right?
940
00:40:53.100 --> 00:40:54.150
Yes, your Honor.
So you agree
941
00:40:54.150 --> 00:40:56.950
if there was a remand that that would all stay the same?
942
00:40:58.230 --> 00:40:59.063
I think-
943
00:41:00.840 --> 00:41:01.673
In other words,
944
00:41:01.673 --> 00:41:05.190
there couldn't be a withdrawal or a higher sentence.
945
00:41:05.190 --> 00:41:06.360
No, no, right, absolutely.
946
00:41:06.360 --> 00:41:07.193
Yes, your Honor.