This article appeared in Knife Magazine in September 2024
Know Your Knife Laws – What Does the FSA Mean?
By Anthony Sculimbrene, Attorney and Knife Expert
As I wrote last month, Knife Rights et al. v Garland was decided in a distinctively unhelpful way. Instead of ruling on whether Bruen invalidates the Federal Switchblade Act (“FSA” found at 15 USC 1241-1245), the Court punted and decided the issue on procedural grounds, ruling that the plaintiffs lacked standing (that is, they did not have a genuine issue for the Court to resolve). Even an adverse ruling on substantive grounds could have been more illuminating.
There was, however, one comment in Knife Rights v. Garland that was genuinely interesting to me. It was this comment:
“…The evidence presented by Defendants show there are only records of four enforcement actions in the county under the Act since 2004 and it has not been enforced since 2010. Plaintiffs do not counter this factual assertion. Accordingly, the threat of prosecution under Section 1242 (15 USC 1242) “is therefore a mere hypothetical dispute lacking the concreteness and imminence required by Article III.”
Two things about this quote: first, I believe there is a typo in the original opinion, as it is unlikely a county would enforce a federal law. I believe the Court meant to write: “four enforcement actions in the country.” The source of this information referenced by the Court makes clear it was a countrywide search. Second, it is not clear which four cases the US Attorneys are referencing. Here is that quote from the US Attorney’s brief in opposition to Knife Rights et al.’s motion for summary judgment:
“The query of the current database, which contains data from 2004 to the present, revealed that there have been only four criminal cases filed by the USAOs under 15 U.S.C. § 1242, each occurring in a different USAO.”
Neither the Court nor the US Attorneys actually cited those four cases. There was a lengthy recitation of enforcement actions elsewhere in the US Attorney’s brief, but again, they did not refer to specific cases. As a result, we can’t really figure out how the FSA is being used in those rare and selective instances in which it is being used.
Let’s take a look at the language of the statute itself. The first provision, 15 USC 1241, defines what a switchblade is and what constitutes interstate commerce. It is 15 USC 1242 that has the actual legal prohibitions. It reads:
“Whoever knowingly introduces, or manufactures for introduction, into interstate commerce, or transports or distributes in interstate commerce, any switchblade knife, shall be fined not more than $2,000 or imprisoned not more than five years, or both.”
Setting aside the fact that five years in prison is vastly more serious than $2,000 (even when accounting for inflation – in 1958, $2,000 equals the buying power of $21,970.28 in 2024), the statute is confusing. Clearly, there are limitations to making, shipping, and distributing switchblades. But what about individuals? For a long time, the prevailing wisdom of the knife infosphere has been there is no limitation on individuals. This is undoubtedly true to a certain extent. The FSA does not prohibit individuals from using, possessing, or owning a switchblade outside of a very specific geographic area in the US (see section 1243). But could an individual be the target of prosecution for buying one and having it shipped across state lines? While the FSA does have a list of exceptions (see section 1244) on who can “introduce” a switchblade into “interstate commerce,” those exceptions are stunningly broad. It is not clear how the law would be applied to a non-exempt consumer who logs on to a website and buys a switchblade that is shipped from one state to another. Given how common this occurrence is in 2024, we probably should have more information on this than we do.
Case law on this point is, to put it mildly, exceptionally sparse. I can only find a single reported case in US history where an individual was prosecuted for receiving switchblades through interstate commerce. In US v. Nelsen, 859 F.2d 1318 (8th Cir. 1988), Doug Nelsen was charged and convicted for receiving switchblades through interstate commerce. According to the reported opinion, Doug’s plan was to receive switchblades and then sell them through his own company called Crowley Cutlery Company. The charges were filed based on the fact that “Customs Service was able to document numerous knife shipments to both Nelsen’s home and his post office box.” Id. at 1319. Notably, there was nothing in the opinion about Nelsen sending the knives out. This is, so far as I can find, the only reported opinion where a person was charged and convicted under the FSA for causing prohibited knives to be sent to themselves through interstate commerce.
What does this mean, especially in light of all but five states lifting or partially lifting state bans on automatic knives? The key phrase here is “knowingly introduces…” Does buying a knife online from a store in another state constitute “knowingly introducing” a knife into interstate commerce?
One place to look would be the federal Wire Fraud statute, 18 USC 1343. In this statute, a person can be prosecuted for gaining access to money or property under false pretenses and causing that money or property to be sent over wires (any kind of network) via interstate or foreign commerce. In the case of wire fraud, an individual can be prosecuted for causing the money to be sent via a wire from one state to another. In fact, most prosecutions under the Wire Fraud statute and its statutory brother, the Mail Fraud statute, are about individuals doing exactly this. So, if the interstate language in that statute has a similar meaning to the interstate language in 15 USC 1242, then there are real issues for consumers (and, in turn, something really at stake, despite the Court’s insistence in Knife Rights v. Garland that the plaintiffs lacked standing).
The comparison to the Wire Fraud statute is not perfect. The language is not exactly the same: “knowingly introduces” is different from “causes to be transmitted.” If 15 USC 1242 said, “knowingly causes…a switchblade to be introduced…” then I think prosecutions of individuals ordering online from other states would be 100% permissible and much more common. But this language of “knowingly introduces” is different enough and vague enough that Nelsen stands alone in terms of reported opinions for individuals being prosecuted for purchasing knives out of state.
There is another argument that Dan Lawson, a well-known Second Amendment lawyer, has proposed to legislators over the years. It involves a very esoteric law, the Federal Militia Act of 1792 (12 USC 246). Under this law and the similar state equivalents, all able-bodied males between 17 and 45 are part of what the statute calls an “unorganized militia.” Given this distinction, Lawson’s argument is that these people would fall under the Armed Forces exception in the FSA found in 15 USC 1244 (3). This legal theory has not yet been tested in court, and it would probably have equal protection issues as the Act only applies to men, but it does show just how broad the exceptions can be interpreted.
Over the years, both as the reported opinions show and the judge in Knife Rights v. Garland noted, prosecutions under the FSA are exceedingly rare. Prosecutions of individuals are even rarer. However, the language in 15 USC 1242 is unclear, and Nelsen exists. What does this mean for knife owners buying knives from other states without an exception? I wish the case would have told us. For now, I think we have to wait for a definitive answer, either in the form of a repeal of the FSA or case law that strikes it down under Bruen. The judge’s comment from the case about a few examples of prosecution is some solace, but not if you were the person to get charged.
The American Knife & Tool Institute initiated a repeal of the FSA by introducing the Freedom of Commerce Act, first in 2017, and AKTI continues to work on achieving this goal.