This article appeared in Knife Magazine in August 2023.
Know Your Knife Laws – An Illinois Blueprint for Analyzing Heller
By Anthony Sculimbrene, Attorney and Knife Expert
In 2008, District of Columbia v. Heller held, for the first time in U.S. history, that the right to bear arms was a personal right. What that means, however, is still being figured out on a case-by-case and state-by-state basis. Legal challenges to a variety of laws have come fast and furious since Heller. Right now, there are challenges to the Federal Switchblade Act winding their way- through various courts.
In applying Heller’s standard, courts are forced to look at ‘weapons… typically possessed by law-abiding citizens for lawful purposes…’’ The problem is that this standard is really flexible and quite unclear. Antonin Scalia, the justice who authored the Heller opinion, gave some clear examples of things that AREN’T “weapons… typically possessed by… citizens.” Among the list are “machineguns” and “short-barreled shotguns.” This, of course, provides no guidance to knife owners or those litigating Heller’s implication on knife ownership.
A recent case out of the Northern District of Illinois, Betas v. City of Naperville, 2023 US Dist, LEXIS 27308 (111. Northern Dist. Ct February 17, 2023), gave us some idea how to apply this standard to knives. While the case itself has to do with selling firearms, a key piece of analysis involves something rare in post-Heller jurisprudence – an example of how to apply the Heller standard to knives. The Court, trying to apply this standard, dipped into 18th and 19th-century knife laws that banned bowie knives. The court notes that there is a long history of “laws governing the most dangerous {arms)… In particular, Judge Kendall talked correctly about the bowie knife being a “fighting knife.” She also discussed the Vidalia Sandbar Fight and its role in popularizing the bowie knife. She noted that bowie knives, post-Sandbar, grew in popularity quickly, and in response, there were laws restricting them. Louisiana passed a law, “[a]n act to suppress the use of bowie knives.” Id. at 27. Florida, Tennessee, and Virginia passed similar laws very soon after the famous fight. In the end, 38 states passed bans specifically naming the bowie knife. For Judge Kendall, this history’ of restriction meant that the bowie knife would fail to meet the “typically possessed…” standard from Heller and, therefore, could be restricted despite the Second Amendment.
The important part here for knife owners is that Judge Kendall’s analysis is one of the clearest examples of how the Heller standard would apply to a knife. The history of knife laws, of course, includes bans and restrictions on automatic knives. Unlike bowie knives, however, these laws are relatively recent because automatic knives are, comparatively speaking, relatively recent. Given how Judge Kendall frames the analysis, which seems to be obligatory given Scalia’s ruling in Heller, this recency bias should be the cornerstone to any analysis of an automatic knife as a “weapon typically possessed by citizens.” If historical research can show that the automatic weapon ban is something of recent creation (“recent” being when the Federal Switchblade Act and its state law equivalents came on the books), then it would look categorically different from Judge Kendall’s analysis of bow”* knives in Bevis. She made a compelling case that bowie knives were essentially almost instantly banned. Any delay in banning automatic knives would create space to show that, historically speaking, they were the kind of arms typically possessed by citizens.
It may be possible to argue in reverse as well in the case of automatic knives. While the Federal Switchblade Ban remains law, state after state has repealed their ban on automatic knives. If proponents of automatic knives can marshal current laws to show that the vast majority of states allow automatic knives, then there is an alternative claim to be made that they are arms typically possessed by citizens. While Founding-era history is important in the analysis, nowhere in Heller is there a temporal limitation on what counts as an “arm typically possessed by citizens.”
Bevis v. City of Naperville is such an interesting case for knife owners not because of its analysis of a person’s right to sell fi e- arms of a specific design (which was the point of the litigation) but because it gives us a good blueprint for applying the Heller analysis to knives. In doing so, it shows us how such arguments can be made or, in the case of the current state of the law, how they can be reverse-engineered.
But there is more to the story of Bevis. Bowie fans and historians will immediately notice some errors. First, the judge got the location of the fight wrong – not a material error, but a historical one. It wasn’t at the Vidalia Sandbar but instead just outside of Natchez, Mississippi. Second, the popularity of the big knives (the term bowie knife didn’t exist before the fight, obviously) took off not immediately after the fight, as the judge claimed, but after James Bowie’s death at the Alamo nearly ten years after the infamous knife dual. Finally, the anti-bowie knife laws didn’t pass soon after the fight, but soon after Bowie’s death and subsequent explosion in popularity of his eponymous knife. All this leads to a question – does the analysis hold if the factual issues, especially those associated with the timing of events, were corrected? All of this means one thing – when history matters to the law, meticulous legal arguments require rigorous historical analysis.
Read more articles regarding Heller in Court Case Summaries.