FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

ANDREW TETER; JAMES GRELL,                No. 20-15948

               Plaintiffs-Appellants,        D.C. No.
                                          1:19-cv-00183-
 v.                                         ACK-WRP

ANNE E. LOPEZ, in her official
capacity as the Attorney General of         OPINION
Hawaii; MARK HANOHANO, in his
official capacity as the State Sheriff
Division Administrator,

               Defendants-Appellees.

       Appeal from the United States District Court
                for the District of Hawaii
         Alan C. Kay, District Judge, Presiding

         Argued and Submitted February 14, 2023
                   Honolulu, Hawaii

                   Filed August 7, 2023

 Before: Carlos T. Bea, Daniel P. Collins, and Kenneth K.
                   Lee, Circuit Judges.

                  Opinion by Judge Bea
2                         TETER V. LOPEZ


                          SUMMARY *


              Civil Rights/Second Amendment

   Reversing the district court’s summary judgment in
favor of Hawaii officials and remanding, the panel held that
Hawaii’s ban on butterfly knives, Haw. Rev. State. § 134-
53(a), violates the Second Amendment as incorporated
against Hawaii through the Fourteenth Amendment.
    The panel determined that plaintiffs had standing to
challenge § 134-53(a) because they alleged that the Second
Amendment provides them with a legally protected interest
to purchase butterfly knives, and but for section 134-53(a),
they would do so within Hawaii. Plaintiffs further
articulated a concrete plan to violate the law, and Hawaii’s
history of prosecution under its butterfly ban was good
evidence of a credible threat of enforcement.
    The panel denied Hawaii’s request to remand this case
for further factual or historical development in light of New
York State Rifle & Pistol Ass’n, Inc. v. Bruen, 

 (2022), determining that further development of the
adjudicative facts was unnecessary.
   The panel held that possession of butterfly knives is
conduct covered by the plain text of the Second
Amendment. Bladed weapons facially constitute “arms”
within the meaning of the Second Amendment, and
contemporaneous sources confirm that at the time of the
adoption of the Second Amendment, the term “arms” was

*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                        TETER V. LOPEZ                      3


understood as generally extending to bladed weapons, and
by necessity, butterfly knives. The Constitution therefore
presumptively guarantees keeping and bearing such
instruments for self-defense.
    The panel held that Hawaii failed to prove that section
134-53(a) was consistent with this Nation’s historical
tradition of regulating weapons. The majority of the
historical statutes cited by Hawaii did not ban the possession
of knives but rather regulated how they were carried and
concerned knives that were distinct from butterfly knives,
which are more analogous to ordinary pocketknives. Hawaii
cited no analogues in which Congress, or any state
legislature, imposed an outright ban on the possession of
pocketknives close in time to the Second Amendment’s
adoption in 1791, or the Fourteenth Amendment’s adoption
in 1868.



                        COUNSEL

Alan A. Beck (argued), Law Offices of Alan Beck, San
Diego, California; Stephen D. Stamboulieh, Stamboulieh
Law PLLC, Olive Branch, Mississippi; for Plaintiffs-
Appellants.
Robert T. Nakatsuji (argued), First Deputy Solicitor
General; Ryan M. Akamine and Caron M. Inagaki, Deputy
Attorneys General; Kimberly T. Guidry, Solicitor General;
Holly T. Shikada, Attorney General; Attorney General’s
Office; Honolulu, Hawaii; for Defendants-Appellees.
Pamela W. Bunn and Wendy F. Hanakahi, Dentons US LLP,
Honolulu, Hawaii; Janet Carter, William J. Taylor, Jr., Lisa
M. Ebersole, and Carina B. Gryting, Everytown Law, New
4                       TETER V. LOPEZ


York, New York; for Amicus Curiae Everytown for Gun
Safety.
Kevin O’ Grady, Law Office of Kevin O’Grady LLC,
Honolulu, Hawaii; David T. Hardy, Tucson, Arizona; for
Amicus Curiae Hawaii Firearms Coalition.
Cody J. Wisniewski, Mountain States Legal Foundation,
Lakewood, Colorado, for Amicus Curiae Mountain States
Legal Foundation.
John W. Dillon, Dillon Law Group APC, Carlsbad,
California, for Amici Curiae San Diego County Gun Owners
Political Action Committee, Firearms Policy Coalition, and
Knife Rights Foundation Inc.

OPINION

BEA, Circuit Judge:

    In Hawaii, it is a misdemeanor knowingly to
manufacture, sell, transfer, transport, or possess a butterfly
knife—no exceptions. 

(a). Because
the possession of butterfly knives is conduct protected by the
plain text of the Second Amendment, and because Hawaii
has not demonstrated that its ban on butterfly knives is
consistent with this Nation’s historical tradition of regulating
arms, we conclude that section 134-53(a) violates Plaintiffs’
Second Amendment rights. We reverse and remand.
                               I.
    The butterfly knife, also known as the “balisong,” has a
disputed origin. Some sources say it originated in France;
others, the Philippines. It is anywhere from a few hundred to
                        TETER V. LOPEZ                       5


over a thousand years old. Regardless of its origin, the
butterfly knife resembles an ordinary pocketknife, a tool that
has been used by Americans since the early 18th century (at
the very latest). See State v. Delgado, 

, 613–14
(Or. 1984). Like a pocketknife, the butterfly knife comprises
a handle and a folding blade, the cutting edge of which
becomes covered by the handle when closed. Unlike a
pocketknife, however, the butterfly knife’s handle is split
into two components. Together, these two components fully
encase the blade when closed and rotate in opposite
directions to open. With a few short, quick movements, an
experienced user can open a butterfly knife with one hand.
    Hawaii first criminalized carrying butterfly knives in
1993. See 

. Today, its butterfly
knife ban reads in relevant part:

       Whoever knowingly manufactures, sells,
       transfers, possesses, or transports in the State
       any butterfly knife, being a knife having a
       blade encased in a split handle that manually
       unfolds with hand or wrist action with the
       assistance of inertia, gravity or both, shall be
       guilty of a misdemeanor.

(a).
    Plaintiffs Andrew Teter and James Grell are law-abiding
Hawaii residents who wish to purchase butterfly knives for
self-defense. They sued Hawaii’s Attorney General and
Sheriff Division Administrator (“Hawaii”). Plaintiffs sought
declaratory relief to establish that section 134-53(a) violates
the Second Amendment and injunctive relief against its
enforcement. Plaintiffs alleged that, “[b]ut for Hawaii law,”
they would purchase butterfly knives. Plaintiffs further
6                           TETER V. LOPEZ


stated, in sworn declarations presented on cross-motions for
summary judgment, that they owned butterfly knives before
moving to Hawaii. They were “forced to dispose of” their
knives because of section 134-53(a), but they would
purchase butterfly knives again “[i]f Hawaii’s ban were
lifted.” During discovery, Hawaii’s deposition witness and
Plaintiffs’ expert witness agreed that the butterfly knife “is
just a tool” that can be used offensively and defensively.
    On cross-motions for summary judgment, the district
court applied then-binding precedent 1 to conclude that
section 134-53(a) does not violate the Second Amendment,
granted Hawaii’s motion, and entered judgment in its favor.
We stayed Plaintiffs’ appeal pending the Supreme Court’s
decision in New York State Rifle & Pistol Ass’n, Inc. v.
Bruen, 

 (2022). After Bruen was decided, a
motions panel ordered supplemental briefing and denied
Hawaii’s motion to remand. The appeal is now before us.
See 

.
                                   II.
    We address two threshold issues before reaching the
merits of this appeal. First, Hawaii argues that Plaintiffs lack
standing to challenge section 134-53(a). Second, Hawaii
renews its argument that we should remand for “further
factual or historical development.” We reject both
arguments.
                                   A.
     We first consider Article III standing. “To satisfy Article
III standing, a plaintiff must show: (1) an injury in fact that


1
 See United States v. Chovan, 

 (9th Cir. 2013), abrogated
by N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 

 (2022).
                         TETER V. LOPEZ                        7


is concrete and particularized and actual or imminent, not
conjectural or hypothetical; (2) a causal connection between
the injury and the challenged action of the defendant; and
(3) that it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.” Jackson v.
City & County of San Francisco, 

 (9th Cir.
2014) (cleaned up). Here, the parties primarily dispute the
injury in fact requirement. In particular, they disagree on the
applicable framework governing that requirement in the
Second Amendment context.
    Citing Jackson, Plaintiffs contend that the forced
dispossession of their butterfly knives, combined with their
inability to acquire replacements, constitutes a present injury
which creates Article III standing to seek declaratory and
injunctive relief. See 

. But, citing San Diego
County Gun Rights Committee v. Reno, Hawaii argues that
this amounts to the mere “chilling” of one’s ability to
purchase an outlawed arm, which is not a cognizable injury.

, 1129–30 (9th Cir. 1996), abrogated in part by
District of Columbia v. Heller, 

 (2008). In
Hawaii’s view, Plaintiffs have not established a present
injury and must therefore satisfy the traditional requirements
for a pre-enforcement challenge. See Susan B. Anthony List
v. Driehaus, 

, 159 (2014) (describing those
requirements); Oklevueha Native Am. Church of Haw., Inc.
v. Holder (“Oklevueha”), 

 (9th Cir. 2012)
(same). For reasons explained below, we conclude
that Plaintiffs have established standing to challenge
section 134-53(a) under both Jackson and Driehaus.
                               1.
   The plaintiff in Jackson sought to enjoin San Francisco’s
ban on the sale of hollow-point ammunition. 

.
8                            TETER V. LOPEZ


San Francisco argued that Jackson had “not suffered an
injury in fact because she could easily obtain hollow-point
ammunition outside San Francisco.” 

. We
disagreed. We held that Jackson established an injury in fact
because she “allege[d] that the Second Amendment
provide[d] her with a legally protected interest to purchase
hollow-point ammunition, and that but for [the ban], she
would do so within San Francisco.” 

 (cleaned up). Jackson
had not been threatened with prosecution under the
ban—which prohibited only the transfer of such ammunition
in San Francisco, not its possession—and we required no
proof of such prosecution before concluding that she had
suffered a cognizable injury. 2
    So too here. Plaintiffs allege in their complaint that,
“[b]ut for Hawaii law,” they would purchase butterfly
knives, an allegation which mirrors the one found adequate
in Jackson. Plaintiffs stated in sworn declarations that they
were “forced to dispose of” their butterfly knives because of
section 134-53(a) and that, “[i]f Hawaii’s ban were lifted,”
they would purchase replacements. As in Jackson, Plaintiffs
“allege[] that the Second Amendment provides [them] with
a legally protected interest to purchase [butterfly knives],
and that, but for section [134-53(a)], [they] would do so


2
  Jackson has been interpreted as holding that an “ongoing deprivation
of an alleged legally protected interest, [one’s] Second Amendment
rights, is sufficient to constitute an injury in fact.” Sullivan v. Ferguson,
No. 3:22-CV-05403-DGE, 

, at *5 (W.D. Wash. Oct.
24, 2022). Although Sullivan is not binding, its understanding of Jackson
comports with our recognition that a threat of prosecution is unnecessary
to prove standing where the plaintiffs’ injury is “not a hypothetical risk
of prosecution but rather actual, ongoing . . . harm resulting from their”
adherence to the challenged statute. National Audubon Society, Inc. v.
Davis, 

 (9th Cir. 2002).
                        TETER V. LOPEZ                        9


within [Hawaii].” 

 Accordingly, Jackson compels the
conclusion that “section [134-53(a)] constitutes an injury in
fact to [Plaintiffs], and [they have] standing to challenge it.”

   Hawaii’s reliance on San Diego County for the contrary
proposition is misplaced.
    Decided in 1996—before Heller—San Diego County
involved a challenge to the federal Crime Control Act of
1994 (“CCA”). 98 F.3d at 1124. The plaintiffs argued that
they had standing to enjoin the CCA’s enforcement because
they “‘wish[ed] and intend[ed]’ to engage in unspecified
conduct prohibited by the [CCA].” Id. In concluding that the
plaintiffs lacked standing, we stated that “the chilling of [the
plaintiffs’] desire and ability to purchase outlawed firearms”
was not a cognizable injury. Id. at 1129–30. Instead, we
required the plaintiffs to identify some other injury-in-fact,
which they failed to do. Id. at 1126–31. Hawaii argues that
San Diego County forecloses any reliance on Jackson. We
disagree.
    As relevant here, San Diego County addressed a narrow
question—whether a subjective, unspecified “chilling” of
one’s ability to acquire an arm constituted an injury in fact.
Id. at 1124, 1129–30. Plaintiffs here do not allege that their
ability to purchase butterfly knives has been “chill[ed].” Id.
at 1129–30. The sale of butterfly knives is completely
banned in the Hawaiian Islands. See 

-
53(a). As Hawaii residents, Plaintiffs are completely unable
to acquire the arms that they allege are protected by the
Second Amendment, which places this case within the
confines of Jackson, not San Diego County.
   And to the extent San Diego County could be read as
contradicting Jackson, it has been abrogated. When San
10                          TETER V. LOPEZ


Diego County was decided, our precedent held that “the
Second Amendment [was] a right held by the states, and
[did] not protect the possession of a weapon by a private
citizen.” 98 F.3d at 1124 (cleaned up). 3 In other words, to
the extent San Diego County categorically held that a
plaintiff cannot be injured by his inability “to purchase
outlawed firearms,” id. at 1129–30, that was because our
precedent had not yet recognized any individual right to keep
and bear arms, id. at 1124. Of course, that precedent is
“clearly irreconcilable,” Miller v. Gammie, 

 (9th Cir. 2003), with Heller’s recognition of the
individual right to keep and bear arms. 

.
    Hawaii’s broad reading of San Diego County is also
irreconcilable with Teixeira v. County of Alameda, which
adopted Jackson’s conclusion that the Second Amendment
protects “the ability to acquire arms.” 

, 677–78
(9th Cir. 2017) (en banc). 4 Thus, we conclude that Heller
and Teixeira foreclose Hawaii’s attempt to expand San



3
 It was for this reason that the district court in Jackson noted that San
Diego County’s standing analysis was of “uncertain” ongoing validity.
Jackson v. City & Cnty. of San Francisco, 

(N.D. Cal. 2011).
4
  In Teixeira, a “would-be operator of a gun store” challenged a zoning
ordinance that limited gun store locations in Alameda County. 873 F.3d
at 673–75, 678. In summarizing the scope of the Second Amendment
right, Teixeira cited Jackson, explaining that “the core Second
Amendment right to keep and bear arms for self-defense wouldn’t mean
much without the ability to acquire arms.” Id. at 677 (cleaned up).
Accordingly, Teixeira “ha[d] derivative standing to assert the subsidiary
right to acquire arms on behalf of his potential customers.” Id. at 678.
We conducted no threat-of-prosecution analysis in reaching this
conclusion.
                         TETER V. LOPEZ                       11


Diego County’s holding in a manner that would contradict
Jackson.
   Because Jackson compels the conclusion that Plaintiffs
have established an injury in fact, it is not apparent that we
must analyze the traditional requirements for a pre-
enforcement challenge. See Nat’l Audubon Soc’y, Inc., 

. But for the sake of thoroughness, we choose to
“consider the familiar preenforcement claim ripeness
analysis” to this case. Oklevueha, 

 (internal
quotation marks omitted). We reach the same result under
Hawaii’s theory of the case, which requires Plaintiffs to
prove a justiciable threat of prosecution.
                               2.
    To establish a justiciable threat of prosecution, a plaintiff
must allege “an intention to engage in a course of conduct
arguably affected with a constitutional interest, but
proscribed by a statute, and there exists a credible threat of
prosecution thereunder.” Driehaus, 573 U.S. at 159.
Plaintiffs have alleged such an intention. Each Plaintiff
declared under penalty of perjury that he wishes to purchase
a butterfly knife, and would do so but for Hawaii’s ban. That
conduct is arguably affected with a constitutional
interest—Plaintiffs’ Second Amendment rights—and is
proscribed by the statute here. See 

-
53(a). And there is a credible threat of enforcement under
Hawaii’s law. Since 2012, roughly 30 people have been
arrested or issued a citation for possessing a butterfly knife.
Hawaii’s “history of past enforcement” is “good evidence”
that future enforcement is likely. Driehaus, 573 U.S. at 164.
    Citing San Diego County, Hawaii contends that
Plaintiffs must go further and show a “genuine threat of
imminent prosecution,” which San Diego County suggests
12                       TETER V. LOPEZ


would include a showing as to the “particular time or date on
which plaintiffs intend to violate” the challenged statute. 98
F.3d at 1126–27. But these stricter requirements in San
Diego County cannot be reconciled with Driehaus’s
rejection of the Sixth Circuit’s similar view in that case, and
these aspects of San Diego County are therefore no longer
good law. See Miller, 335 F.3d at 899–900. As Driehaus
makes clear, all that is required is that the plaintiff establish
“an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a
statute, and [that] there exists a credible threat of
prosecution.” 573 U.S. at 159 (emphasis added). Driehaus
also confirms that exact dates and times are not necessary
and that it is sufficient on that score to identify, as Plaintiffs
have done here, the specific conduct (here, the acquisition
and possession of butterfly knives) that they affirmatively
intend to engage in if Hawaii’s criminal prohibition is
invalidated. Id. at 161.
    Hawaii also argues that Plaintiffs have failed to establish
standing under the three-factor test we use “to determine
whether plaintiffs have shown . . . a credible threat” under
Driehaus. See Unified Data Servs., LLC v. FTC, 

 (9th Cir. 2022). Those factors are: “[1] whether
the plaintiffs have articulated a concrete plan to violate the
law in question, [2] whether the prosecuting authorities have
communicated a specific warning or threat to initiate
proceedings, and [3] the history of past prosecution or
enforcement under the challenged statute.” 

 Consideration
of these factors confirms that Plaintiffs have sufficiently
established a credible threat of prosecution.
    Here, Plaintiffs “have articulated a concrete plan to
violate the law in question.” 

 They have stated, under
penalty of perjury, that they previously possessed butterfly
                        TETER V. LOPEZ                      13


knives but were forced to dispose of them because of
Hawaii’s ban. They further declared that they wish to
purchase replacement butterfly knives and would do so were
the law not in place. Based on Plaintiffs’ disposal of their
butterfly knives and their stated desire to purchase
replacements, it is clear that their commitment to engage in
conduct prohibited by Hawaii’s ban is no mere “‘some day’
intention[].” Lujan v. Defs. of Wildlife, 

(1992). Moreover, Hawaii’s history of prosecution under its
butterfly knife ban, is “good evidence” of a credible threat
of enforcement. Driehaus, 573 U.S. at 164.
    Hawaii’s suggestion that a plaintiff must always prove
“a specific warning or threat to initiate proceedings” has no
basis in our precedent. These factors must be considered as
a whole, in light of the totality of the circumstances, and not
as a mandatory checklist. See Unified Data Servs., LLC, 39
F.4th at 1210–11; Oklevueha, 

 (finding
standing even though the “[p]laintiffs [did] not allege any
threat of prosecution” (emphasis added)). On balance, we
conclude that Plaintiffs have established a credible threat of
enforcement of section 134-53(a), and therefore have
established an injury in fact under Driehaus.
     The remaining elements of standing are not seriously
disputed. The injury Plaintiffs complain of is directly
traceable to the defendants, who are the officials responsible
for enforcement of Hawaii’s butterfly knife ban. Lujan, 

. And their injury would be redressed by a remedy
that the district court could provide them, namely, an
injunction against enforcement. 

. We are therefore
satisfied that Plaintiffs have met the requirements for Article
III standing.
14                      TETER V. LOPEZ


                             B.
    Second, we deny Hawaii’s request for a remand. Hawaii
has not explained what further factual development
necessitates this relief. At oral argument, Hawaii’s counsel
argued that further historical research is needed in light of
Bruen. Oral Arg. at 14:58–16:50. But the historical research
required under Bruen involves issues of so-called
“legislative facts”—those “which have relevance to legal
reasoning and the lawmaking process,” such as “the
formulation of a legal principle or ruling by a judge or
court”—rather than adjudicative facts, which “are simply the
facts of the particular case.” Fed. R. Evid. 201, advis. comm.
note (1972 proposed rules). Because the issue does not
require further development of adjudicative facts to apply
Bruen’s new standard, it does not trigger our “standard
practice” in favor of remanding when an intervening change
in law requires additional inquiry concerning adjudicative
facts. See Detrich v. Ryan, 

, 1248–49 (9th Cir.
2013) (en banc) (plurality opinion), overruled on other
grounds by Shinn v. Ramirez, 

 (2022). And
even when that presumption in favor of remand applies, we
need not do so when “we can confidently decide [the issue]
ourselves.” 

. This is such a case. As we explain
below, Hawaii has never cited an on-point historical
analogue to section 134-53(a) even after having an
                            TETER V. LOPEZ                             15


opportunity to do so before both motions and merits panels. 5
We therefore decline to remand. 6
   Having cleared these two threshold hurdles, we now
address the merits of this appeal.
                                   III.
    Plaintiffs appeal the district court’s grant of summary
judgment to Hawaii, as well as the denial of their own
motion for summary judgment. “When the district court
disposes of a case on cross-motions for summary judgment,
we may review both the grant of the prevailing party’s
motion and the corresponding denial of the opponent’s
motion.” Rearden LLC v. Rearden Com., Inc., 

 (9th Cir. 2012) (cleaned up). Specifically, we
must determine whether section 134-53(a) violates rights
guaranteed by the Second Amendment, which is a question
we review de novo. United States v. Oliver, 

 (9th Cir. 2022).
    The Second Amendment guarantees the individual right
to keep and bear arms, Heller, 

, and is
incorporated against Hawaii through the Due Process Clause

5
 As explained infra section III.C., Hawaii’s best historical analogue did
not completely bar all possession of a type of knife. See 

.
6
  Hawaii is not entitled to a remand on the ground that it should be given
a further opportunity to establish a factual record for its position that
butterfly knives may be prohibited based on what it contends is Heller’s
“categorical exception[]” for “dangerous and unusual” weapons. By its
terms, this argument rests on the pre-Bruen decision in Heller, and
Hawaii already had a full opportunity to put forward a record as to why
butterfly knives should be considered to be “dangerous and unusual” in
the sense claimed. We address the merits of Hawaii’s contention on this
score below. See infra at 20–22.
16                      TETER V. LOPEZ


of the Fourteenth Amendment, McDonald v. City of
Chicago, 

 (2010). Before analyzing the
parties’ Second Amendment arguments, we discuss Bruen.
                             A.
    Bruen abrogated the two-step approach we had adopted
following Heller and McDonald to analyze Second
Amendment challenges. See, e.g., United States v. Chovan,

 (9th Cir. 2013), abrogated by Bruen,

. Under our pre-Bruen approach, we would:
(1) determine whether the challenged law affects conduct
historically protected by the Second Amendment; and (2) if
so, apply varying levels of scrutiny to review the
constitutionality of the arms regulation, depending on how
close the conduct affected by the law lay to the “core” of the
Second Amendment right to “keep and bear arms.” E.g.,
Young v. Hawaii, 

, 783–84 (9th Cir. 2021) (en
banc), vacated, 

. Bruen rejected this two-step
test, reasoning that it was “one step too many.” 

. Instead, Bruen held

       that when the Second Amendment’s plain
       text covers an individual’s conduct, the
       Constitution presumptively protects that
       conduct. To justify its regulation, the
       government may not simply posit that the
       regulation promotes an important interest.
       Rather, the government must demonstrate
       that the regulation is consistent with this
       Nation’s historical tradition of firearm
       regulation. Only if a firearm regulation is
       consistent with this Nation’s historical
       tradition may a court conclude that the
                        TETER V. LOPEZ                      17


       individual’s conduct falls outside the Second
       Amendment’s “unqualified command.”

 (cleaned up). Although Bruen discussed “firearm
regulation[s],” that was because the arm at issue in that case
was a firearm. We see no reason why the framework would
vary by type of “arm.”
    Applying the above standard, the first question in Bruen
was “whether the plain text of the Second Amendment
protects    [the    plaintiffs’]    proposed    course    of
conduct—carrying handguns publicly for self-defense.” 

. In answering it, Bruen analyzed only the “Second
Amendment’s text,” applying ordinary interpretive
principles. 

 at 2134–35. Because the word “‘bear’
naturally encompasses public carry,” the Court concluded
that the conduct at issue in Bruen (public carry) was
protected by the plain text of the Second Amendment. 

.
     The second question addressed in Bruen was whether
New York had met its burden in proving its “proper-cause
requirement is consistent with this Nation’s historical
tradition of firearm regulation.” 

. In answering
this second question, Bruen noted that “not all history is
created equal.” 

. It reasoned that the most apposite
historical sources from which to derive a comparable
historical analogue to the challenged statute are those close
in time to 1791 (when the Second Amendment was ratified)
18                         TETER V. LOPEZ


or 1868 (when the Fourteenth Amendment was ratified). 

at 2136–38. 7
     We similarly structure our analysis. First, we examine
whether possession of butterfly knives is conduct covered by
the plain text of the Second Amendment. Concluding that it
is, we then analyze whether Hawaii has demonstrated that its
complete prohibition of that conduct is consistent with this
Nation’s historical tradition of regulating arms.
                                 B.
   We first consider whether the possession of butterfly
knives is protected by the plain text of the Second
Amendment. The plain text provides:

        A well regulated Militia, being necessary to
        the security of a free State, the right of the
        people to keep and bear Arms, shall not be
        infringed.

U.S. Const. amend. II.
   In Heller, the Supreme Court held that a handgun was an
“arm” within the meaning of the Second Amendment. 

, 628–29. In reaching that conclusion, the Court
began by noting that, as a general matter, the “18th-century
meaning” of the term “arms” is “no different from the
meaning today.” 

. Then, as now, the Court
explained, the term generally referred to “[w]eapons of

7
  Bruen observed that “there is an ongoing scholarly debate on whether
courts should primarily rely on the prevailing understanding of an
individual right when the Fourteenth Amendment was ratified in 1868
when defining its scope (as well as the scope of the right against the
Federal Government).” 

. Because this debate is not
relevant to the disposition of this appeal, we express no view on it.
                        TETER V. LOPEZ                      19


offence, or armour of defence.” 

 (cleaned up). The Court
further noted that all relevant sources of the original public
meaning of “arms” agreed that “all firearms constituted
‘arms’” within the then-understood meaning of that term. 

The Court emphasized that it is irrelevant whether the
particular type of firearm at issue has military value, because
the term “arms” “was applied, then as now, to weapons that
were not specifically designed for military use and were not
employed in a military capacity.” 

 And, just as the scope
of protection afforded by other constitutional rights extends
to modern variants, so too the Second Amendment “extends,
prima facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the
founding.” Id. at 582.
    We similarly conclude that, just as with firearms in
Heller, bladed weapons facially constitute “arms” within the
meaning of the Second Amendment. Like firearms, bladed
weapons fit the general definition of “arms” as “[w]eapons
of offence” that may be “use[d] in wrath to cast at or strike
another.” Id. (cleaned up). Moreover, contemporaneous
sources confirm that, at the time of the adoption of the
Second Amendment, the term “arms” was understood as
generally extending to bladed weapons. See 1 Malachy
Postlethwayt, The Universal Dictionary of Trade and
Commerce (4th ed. 1774) (including among “arms” fascines,
halberds, javelins, pikes, and swords). Because the plain text
of the Second Amendment includes bladed weapons and, by
necessity, butterfly knives, the Constitution “presumptively
20                          TETER V. LOPEZ


guarantees” keeping and bearing such instruments “for self-
defense.” Bruen, 

. 8
     Hawaii presents two arguments to the contrary. First,
Hawaii argues that only “ordinary, law-abiding, adult
citizens” are included among “the people” referenced in the
Second Amendment’s plain text. From there, it argues that
“banning weapons associated with criminals”—such as, in
Hawaii’s view, butterfly knives—“should not violate the
Second Amendment.” This argument fails because Hawaii’s
ban is not limited to criminals. See 

-
53(a). Indeed, the uncontroverted evidence in the record
shows that these plaintiffs are not criminals, so this defense
would not resolve their claims. 9
    Second, we similarly reject Hawaii’s argument that the
purported “dangerous and unusual” nature of butterfly
knives means that they are not “arms” as that term is used in
the Second Amendment. Heller itself stated that the
relevance of a weapon’s dangerous and unusual character
lies in the “historical tradition of prohibiting the carrying of

8
  Some state courts before Heller excluded many types of bladed
weapons from the “arms” protected by the Second Amendment on the
ground that they assertedly were not suited for military use. See State v.
Workman, 

 (W. Va. 1891); English v. State, 

,
476–77 (1871); see also Strickland v. State, 

, 261–62 (Ga.
1911) (collecting cases). That reasoning is now squarely foreclosed by
Heller, 554 U.S. at 581–82 (explicitly rejecting the view that the “arms”
protected by the Second Amendment are limited to those “specifically
designed for military use” or “employed in a military capacity”).
Moreover, at oral argument, Hawaii’s counsel conceded that “knives, in
general, can qualify as arms.” Oral Arg. at 18:35.
9
 Because section 134-53(a) is not limited to disarming criminals, we do
not address the question whether criminals are included among “the
people” referenced the Second Amendment’s text.
                        TETER V. LOPEZ                     21


dangerous and unusual weapons.” 

 (emphasis
added) (cleaned up). It did not say that dangerous and
unusual weapons are not arms. Thus, whether butterfly
knives are “dangerous and unusual” is a contention as to
which Hawaii bears the burden of proof in the second prong
of the Bruen analysis.
    Because the historical tradition of prohibiting the carry
of dangerous and unusual weapons was recognized in
Heller, Hawaii had more than an ample opportunity to
present arguments to the district court that butterfly knives
are of that type. And Hawaii, in fact, proffered some
evidence to that effect. Indeed, this appears to have been
Hawaii’s primary argument below; at the summary
judgment hearing, Hawaii’s counsel stated that “our initial
argument is that the butterfly knife is a dangerous and
unusual weapon.” But Hawaii failed to present evidence
sufficient to create a genuine issue of material fact as to
whether butterfly knives are dangerous and unusual.
    To determine whether a weapon is dangerous and
unusual, “we consider whether the weapon has uniquely
dangerous propensities and whether the weapon is
commonly possessed by law-abiding citizens for lawful
purposes.” Fyock v. Sunnyvale, 

 (9th Cir.
2015), abrogated on other grounds by Bruen, 

. The record does not support a conclusion that the
butterfly knife has uniquely dangerous propensities. The
butterfly knife is simply a pocketknife with an extra rotating
handle. The ability of an experienced user to expose the
blade with one hand is not the sort of “astonishing
innovation” that “could not have been within the
contemplation of the constitutional drafters.” Delgado, 

.
22                        TETER V. LOPEZ


      There similarly is no genuine issue of material fact as to
whether butterfly knives are commonly owned for lawful
purposes. Most notably, Hawaii’s own witness conceded
that butterfly knives may be used for self-defense. Moreover,
in opposing passage of section 134-53(a), Hawaii’s Public
Defender’s Office presented testimony that “butterfly knives
. . . are an integral part of the [F]ilipino martial art called
Escrima,” and an Escrima instructor testified to teaching the
use of the balisong in martial arts for over a decade. 10 In
opposition, Hawaii cites some conclusory statements in the
legislative history claiming that butterfly knives are
associated with criminals. We give little weight to these
statements. Common sense tells us that all portable arms are
associated with criminals to some extent, and the cited
conclusory statements simply provide no basis for
concluding that these instruments are not commonly owned
for lawful purposes. Aside from these conclusory legislative
statements, Hawaii has submitted no evidence that butterfly
knives are not typically possessed by law-abiding citizens
for self-defense.
   Having rejected Hawaii’s arguments to the contrary, we
conclude that the possession of butterfly knives is conduct
covered by the plain text of the Second Amendment.
                                C.
    Because the possession of butterfly knives is covered by
the plain text of the Second Amendment, Hawaii must prove
that section 134-53(a) is consistent with this Nation’s
historical tradition of regulating weapons. Bruen, 

  “Esgrima” is the Spanish word for “fencing.” The Oxford Spanish
Dictionary 344 (Beatriz Galimberti Jarman, Roy Russell, Carol Styles
Carvajal & Jane Horwood eds., 3d ed. 2003).
                           TETER V. LOPEZ                            23


at 2126–27, 2135. Hawaii may meet its burden by citing
analogous regulations that were enacted close in time to the
Second Amendment’s adoption in 1791 or the Fourteenth
Amendment’s adoption in 1868. 

 at 2136–38. “Historical
evidence that long predates either date may not illuminate
the scope of the right if linguistic or legal conventions
changed in the intervening years,” and “we must also guard
against giving postenactment history more weight than it can
rightly bear.” 

. Hawaii must derive from these
sources a “proper [historical] analogue” to section 134-
53(a). 

.
    In this historical-analogue inquiry, we cannot “uphold
every modern law that remotely resembles a historical
analogue.” 

. “On the other hand, analogical
reasoning requires only that the government identify a well-
established and representative historical analogue, not a
historical twin.” 

 In determining whether the modern
regulation and the historical analogue are “relevantly
similar,” we must look to the “how and why” of the two
regulations; that is, “whether modern and historical
regulations impose a comparable burden on the right of
armed self-defense and whether that burden is comparably
justified are central considerations when engaging in an
analogical inquiry.” 

 at 2132–33. (cleaned up).
   Hawaii argues that section 134-53(a) is analogous to a
number of state statutes stretching back to 1837, which
regulated “Bowie knives,” “Arkansas Toothpicks,” “slung-
shots,” metal knuckles, sword-canes, and other so-called
“deadly weapons.” 11 Hawaii argues that these statutes evince

11
  The bowie knife has a large, fixed blade that is sharp on one side and
generally longer than nine inches. David B. Kopel et al., Knives and the
24                           TETER V. LOPEZ


an historical tradition of banning weapons associated with
criminality. We disagree that these statutes are proper
historical analogues to section 134-53(a).
    As Bruen put it, the “how” of the proffered state statutes
is different—they regulate different conduct. 

. The vast majority of the statutes cited by Hawaii did
not ban the possession of knives; they regulated only their
carry. True, four of these statutes (by our count) banned the
possession of slung-shots, metal knuckles, and an undefined
category of “deadly weapons.” See supra note 11. But no
statute cited by Hawaii categorically banned the possession
of any type of pocketknife.
    Hawaii’s best historical analogue is an 1837 Georgia
statute. That statute states that no one shall “keep, or have
about or on their person or elsewhere . . . Bowie, or any
other kind of knives.” 

. It is not apparent
to us that “other kind[s] of knives,” would have been
understood to include pocketknives. Even so, the Georgia

Second Amendment, 

, 180 (2013). The
Arkansas Toothpick has a “triangular blade[] up to eighteen inches long,
sharpened on both edges.” 

. The slung-shot, also known as a
“monkey’s fist,” is composed of a rope tied into a large, dense knot
covering a heavy weight. It was traditionally used as a maritime tool to
cast a line from one location to another. But it was also used as a weapon,
similar to how one might use a flail. See, e.g., 

(banning the sale and possession of “slung shot[s]”); 

 (same); 

 (banning the manufacture and
sale of “slung shot[s]”); 

 (banning the concealed
carry of slung-shots or brass knuckles); 

 (banning the
sale and possession of a “slung-shot or metallic knuckles, or other deadly
weapon”); 

 (banning the sale and possession of
“slungshot[s]” or other deadly weapons); 

 (banning
the manufacture and sale of “slung-shot[s], sand club[s], or metal
knuckles”).
                           TETER V. LOPEZ                           25


statute must have permitted at least some possession of
knives because it provided an exception for open carry. 

It thus was substantially less restrictive than the Hawaii
statute at issue here. And even if it were analogous to section
134-53(a), one solitary statute is not enough to demonstrate
a tradition of an arms regulation. Bruen, 

.
    Of the remaining knife-regulating statutes cited by
Hawaii, the most restrictive category banned the sale of
bowie knives, Arkansas Toothpicks, dirks, or daggers. 12 The
second-most restrictive category banned the carry of such
weapons, concealed or otherwise. 13 But even these two
categories are outliers.
   The vast majority of the statutes cited by Hawaii
prohibited the concealed carry of bowie knives, Arkansas
Toothpicks, dirks, daggers, or other “deadly weapons.” 14

12
   E.g., 

; 

; 

 (prohibiting sales only as to minors and intoxicated persons); 

 (prohibiting transfers of knives only as to minors); 

 (prohibiting transfers only as to minors); 

 (prohibiting transfers only as to minors); 

 (prohibiting the manufacture or transfer of certain weapons,
including dirks and daggers).
13
  See, e.g., 

; 

; 

; 

; 

 (prohibiting
the carry of dirks or daggers).
14
  E.g., 

; 1838 Tenn. Pub. Acts 200–01; 

 (prohibiting only “habitual[]” concealed carry); 

;

; 

; 

; 

; 

; 

; 

 (prohibiting only “habitual[]” concealed carry); 

; 1879 Ill. Laws 114–15; 

; 1880 S.C.
Acts 447–48; 

; 

; 

;
26                          TETER V. LOPEZ


Other statutes were even more targeted. Some prohibited
carry by certain individuals, 15 carry in certain places at
certain times, 16 or carry for certain purposes, 17 and still

; 

; 1893 R.I. Pub. Laws
231–32; 1909 N.J. Laws 34–35.
15
  E.g., 

 (prohibiting carry by persons “not
engaged in any legitimate business,” intoxicated persons, and rebels);

 (prohibiting concealed carry by students).
16
  E.g., 1870 La. Acts 159–60 (prohibiting carry of weapons near polling
places on election days); 

 (same); 1871 Tex.
Gen. Laws 25–26 (prohibiting carry in religious assemblies, schools, and
public gatherings); 

 (prohibiting concealed carry in
churches, schools, election precincts on election days, and courtrooms);

 (prohibiting carry in any “place of public worship
during the time of holding any meeting for religious worship” and on
“Sunday, at any place other than his own premises, except for good and
sufficient cause”); 

 (prohibiting carry at
schools).
17
   E.g., 

 (prohibiting “wilfully [sic] and maliciously”
carrying dirk knives); 

 (prohibiting open carry “with
the intent or avowed purpose of injuring [a] fellow man”); 1866 N.Y.
Laws 810–11 (prohibiting concealed carry “with intent to use against any
other person” and establishing that concealed carry is “presumptive
evidence” of such intent); 

 (prohibiting concealed carry
“with the intent therewith unlawfully and maliciously to do injury to any
other person” and establishing that concealed carry may be evidence of
such intent); 

 (prohibiting open carry “with the intent
or purpose of injuring any person”); 

(prohibiting carry “with the intent or avowed purpose of injuring a fellow
man”); 

 (prohibiting concealed carry for an unlawful
or illegitimate purpose and establishing that concealed carry is
“presumptive evidence” of such intent); 

 (prohibiting
carry of certain knives “with intent to use the same unlawfully against
another”); 

 (prohibiting carry of certain knives
“with intent” to “use against another” and establishing that concealed
carry is presumptive evidence of such intent).
                             TETER V. LOPEZ                             27


others regulated dangerous conduct, such as dueling with a
weapon. 18 Many of these statutes excepted the carry of
prohibited weapons for self-defense, for “lawful purposes,”
while traveling, or in their owners’ homes. 19

18
   E.g., 1837 Miss. Laws 289–90; 

 (“[I]f any person
carrying any knife or weapon, known as Bowie Knives or Arkansaw [sic]
Tooth-picks . . . on a sudden rencounter, shall cut or stab another with
such knife, by reason of which he dies, it shall be adjudged
murder . . . .”); 

 (providing an enhanced penalty for
persons arrested while carrying dangerous weapons); 

(penalizing dueling with certain weapons if it results in death); 

 (prohibiting “drawing or threatening to use” certain weapons);

 (elevating killing a person with certain weapons
during a duel to murder); 

 (providing an enhanced
penalty for persons arrested while carrying dangerous weapons); 

 (prohibiting “exhibit[ing]” certain weapons “in a rude,
angry or threatening manner”); 

 (providing an
additional penalty when a “dangerous weapon[]” is found during arrest
for a separate offense); 1879 Ill. Laws 114–15 (prohibiting display of a
weapon “in a threatening manner”); 

 (prohibiting
display of a weapon “in a threatening or boisterous manner”).
19
   E.g., 

 (criminalizing exhibiting certain types of
knives in a “rude, angry and threatening manner” unless it was “in
necessary self defence”); 

 (exception for travelers);
1859 Ohio Laws 56–57 (providing a defense to conviction if the jury
concluded that, “at the time of carrying any of the weapon or weapons
aforesaid . . . the circumstances in which [defendant] was placed at the
time aforesaid were such as to justify a prudent man in carrying the
weapon or weapons aforesaid for the defense of his person, property, or
family” and that the defendant was “engaged in the pursuit of any lawful
business”); 

 (criminalizing exhibiting certain types of
knives “in a rude, angry, and threatening manner, not in necessary self-
defense”); 

 (exception for travel); 

 (banning any person from carrying bowie knives or dirks
“unless he has reasonable grounds for fearing an unlawful attack on his
person, and that such ground of attack shall be immediate and pressing”
28                           TETER V. LOPEZ


    Notably, the cited statutes regulated kinds of knives that
are distinct from butterfly knives. The butterfly knife is
clearly more analogous to an ordinary pocketknife than to an
Arkansas Toothpick or a bowie knife. And none of the
statutes cited by Hawaii prohibited the carry of
pocketknives, much less their possession outright. Four of
these statutes, in fact, exempted pocketknives by name. 20


and also excepting carrying weapons at one’s home or business or while
traveling); 1872 Wis. Sess. Laws 17–18 (exception to a concealed carry
prohibition if the defendant “had reasonable cause to fear an assault” or
if “his possession of such weapon was for a temporary purpose, and with
harmless intent”); 1873 Neb. Laws 724–25 (exempting the carry of
knives “in the pursuit of any lawful business” in circumstances “such as
to justify a prudent man in carrying the weapon . . . for the defense of his
person, property, or family”); 

 (prohibiting the carry
of certain kinds of knives except on people’s “own premises” or when
“traveling through the country”); 

 (criminalizing
“drawing or threatening to use” weapons unless done “in defense of . . .
person or property”); 

 (criminalizing the brandishing
of weapons “in a rude, angry or threatening manner, not in the necessary
defence of his person, family or property”); 

(criminalizing carry only when not “threatened with, or having good and
sufficient reason to apprehend an attack, or traveling”); 

 (allowing concealed carry on a person’s own premises); 

 (same); 1882 W. Va. Acts 421–22 (exception for
defendants who had “good cause to believe . . . that he was in danger of
death or great bodily harm”); 

 (exceptions for
hunting, “public muster or military drills,” and traveling); 1909 N.J.
Laws 34–35 (exceptions for licensed carry, carry in, to, or from one’s
home and business, and carry for hunting); 

(exception for carrying concealed weapons “to effect a lawful and
legitimate purpose”).
20
   E.g., 1866 N.Y. Laws 810–11 (prohibiting concealed carry of “any
dirk or dagger (not contained as a blade of a pocket-knife)”); 

 (prohibiting the carry of “any dirk, pistol, or other arm or
                         TETER V. LOPEZ                        29


    This historical background makes our analysis relatively
“straightforward.” Bruen, 

. Bruen
explained that

        when a challenged regulation addresses a
        general societal problem that has persisted
        since the 18th century, the lack of a distinctly
        similar historical regulation addressing that
        problem is relevant evidence that the
        challenged regulation is inconsistent with the
        Second Amendment. Likewise, if earlier
        generations addressed the societal problem,
        but did so through materially different means,
        that also could be evidence that a modern
        regulation is unconstitutional.

    Here, the 1999 Hawaii Legislature addressed the
perceived social problem of an “increasing trend in minors
and gang members armed with knives and daggers,” who
preferred butterfly knives “as they are easy to conceal and
are more intimidating when brandished.” But the problem of
people using easily concealable, foldable knives in violent
crimes predates 1999 by hundreds of years:

        Of the many varieties of knives, none has
        been a more constant or enduring companion
        to man than the pocket knife. Specimens of

weapon, except a common pocket knife”); 

(prohibiting concealed carry of “any knife (other than an ordinary
pocket-knife)”); 

 (prohibiting concealed carry of
“dangerous or deadly weapon[s] of any kind whatsoever, (penknives
excepted)”).
30                     TETER V. LOPEZ


       folding pocket knives have been discovered
       in Roman archeological sites, indicating that
       such knives were popular at least from the
       first century A.D. They have been
       manufactured for their utility as both
       instruments of labor and combat. One of the
       most common of the specific named knives is
       the jackknife, a word of uncertain origin,
       which was a large single-bladed folding
       knife, ranging in size from four to seven
       inches when closed. By the early 1700s,
       when the eastern seaboard had become a
       highly settled area with large towns and cities
       and relatively good roads, men normally
       carried a folding pocket knife. Even when
       they joined the American army during the
       revolution, the knife they carried was the
       jackknife, which was mentioned frequently
       in colonial records. During the American
       Revolution at least two states, New
       Hampshire and New York, required their
       militiamen to carry a jackknife. . . . The
       folding pocketknife, in particular, since the
       early 18th century has been commonly
       carried by men in America and used
       primarily for work, but also for fighting.

Delgado, 692 P.2d at 613–14.
    Thus, section 134-53(a) purports to “address[] a general
societal problem” of easily concealable, foldable knives
being used in crimes—a problem that “has persisted since
the 18th century.” Bruen 

. But Hawaii cites
no analogues in which Congress or any state legislature
                      TETER V. LOPEZ                   31


imposed an outright ban on the possession of pocketknives
to remedy this problem near 1791 or 1868. “[E]arlier
generations addressed the societal problem” of knife
violence “through materially different means” other than
outright bans on certain types of pocketknives, which goes
to prove that section 134-53(a) violates the Second
Amendment. 

                           IV.
   We conclude that section 134-53(a) violates the Second
Amendment as incorporated against Hawaii through the
Fourteenth Amendment. We reverse and remand for further
proceedings consistent with this opinion.
   REVERSED AND REMANDED.