This article appeared in Knife Magazine in August 2022.
Know Your Knife Laws – Bruen Decision – A First Glance
By Daniel C. Lawson, Attorney and Knife Expert
On June 23, 2022, the U.S. Supreme Court announced its decision in the case of New York State Rifle & Pistol Association, Inc. v Bruen. The knife community welcomes the confirmation of what we understood to be a limitation on the government. While knives are rarely used as weapons, people have a right to defend themselves and carry items – “arms” – suitable for that purpose. This right includes knives.
It may be helpful to briefly review the U.S. Supreme Court decisions in District of Columbia v. Heller, 554 U. S. 570, and McDonald v. Chicago, 561 U. S. 742, decided in 2008 and 2010. Those decisions are frequently cited and quoted in Bruen. For example:
As we stated in Heller and repeated in McDonald, “individual self-defense is ‘the central component’ of the Second Amendment right. McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599).
Heller held that the Second Amendment to the U.S. Constitution preserved an individual right to keep and bear arms apart from service in the militia. Moreover, “arms” includes weapons in common use. The Heller case concerned the District of Columbia, a special federal jurisdiction. It did not apply to the fifty states until the McDonald decision incorporated the Second Amendment into the due process provisions under the Fourth Amendment. This application extends the restriction memorialized in the Second Amendment to state governments, as well.
The Bruen case arose under New York state law, which contains a handgun carry license scheme but requires the applicant to establish proper cause for the license to be granted. Whether proper cause exists is subject to the discretion of issuing officials, including Kevin P. Bruen, the Superintendent of the New York State Police. Proper cause is – in practice – very rarely found.
We mentioned the Bruen case in two articles on these pages earlier this year. Our article entitled Knife Laws Scrutinized, which also appeared in the January issue of Knife Magazine, addressed the standard to be applied by a court considering the constitutionality of a statute which infringes on a Second Amendment right. An important part of the majority opinion in Bruen is the command that legislative enactments which impair Second Amendment firearm rights must be consistent with “this Nation’s historical tradition of firearm regulation.” This is a very high standard developed in a thorough analysis of the historical tradition. Bruen explicitly rejects the intermediate “two-step” approach, which results in deference to an “important interest” of the government:
In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual’s right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part approach. In keeping with Heller, we hold 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 individual’s conduct falls outside the Second Amendment’s “unqualified command.”
One might read Bruen as expressing strong disapproval of post-Heller jurisprudence by the lower courts:
If the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of “intermediate scrutiny” often defer to the determinations of legislatures. But while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment “is the very product of an interest balancing by the people” and “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. Heller, 554 U. S., at 635. It is this balance—struck by the traditions of the American people—that demands our unqualified deference.
The Second Amendment is not about a “second class” right. The limitation on infringement is at the very essence of the agreement which created our government.
Clarification provided by Bruen that the right in question extends beyond the home is no less important than the level or standard of review:
Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry. Moreover, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,”. . . and confrontation can surely take place outside the home. (Citation omitted).
We mentioned this point when discussing the ruling by the Connecticut Supreme Court in State v DeCiccio 105A3d 165 (2014) in the Daggers by Design or Description article, which appeared in the June issue where that Court stated the “commonsense conclusion” is that the right preserved by the Second Amendment – which includes weapon knives within its scope – is limited to one’s home. The Bruen decision points out:
As we explained in Heller, the “textual elements” of the Second Amendment’s operative clause— “the right of the people to keep and bear Arms, shall not be infringed”- “guarantee the individual right to possess and carry weapons in case of confrontation.”. . . Heller further confirmed that the right to “bear arms” refers to the right to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.”. . . This definition of “bear” naturally encompasses public carry.
The precise law at issue in the 2008 Heller U.S. Supreme Court decision was a Washington D.C. statute pertaining to ownership of handguns. We suggest that the above quote, including the words “possess and carry weapons in case of confrontation,” does not support a home-only limitation. The verb “to carry” is universally understood to include having possession of something as one travels about or proceeds from one location to another. A good “rule of thumb” is that one should be wary of legislative solutions or judicial decisions which invoke the term “commonsense.”
The Bruen decision briefly mentions knives and daggers in the context of the lengthy Anglo-American history regarding the regulation of what items people carry for protection. The decision references the 1328 Statute of Northampton, which did not apply to such “smaller medieval weapons that strike us as most analogous to modern handguns.” A significant portion of the sixty-plus page majority opinion is devoted to an analysis and review of governmental restriction – or the absence thereof – on what weapons the citizens of the nation carried. That people have historically and traditionally had a right to armed self-defense and the high standard to be overcome to sustain government infringement is emphasized by repetition:
We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.
The Supreme Court is clearly stating that people have a right to carry weapons in common use. A “regulation” – statute – that restricts such a right is presumed to be invalid unless it is consistent with what restrictions have traditionally obtained.
In this regard, the Bruen decision looks to the manner of carry restrictions that developed in the early 19th century:
In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons.
These laws were part of the cultural/societal campaign to end the practice of dueling and efforts to circumvent those laws. The statutes in this category typically prohibited the concealed carry of pistols, bowie knives, dirks, and daggers. Those laws were generally upheld on the grounds that they did not prevent the bearing of arms and imposed a restriction only on the way the weapon was carried. The Bruen decision suggests that states may restrict open or concealed carry – – not both.
Various knife laws are in place across the country, which are likely unconstitutional as they are intended to prohibit or severely burden the right to carry a knife suitable for use as a weapon.
A New York state statute – § 265.01 – provides that it is unlawful to possess any dagger, dangerous knife, dirk, machete, razor, stiletto, or other weapons with intent to use the same unlawfully against another. This law regulates the manner of possession or carry as it requires intent to use it unlawfully and, as such, would likely survive a constitutional challenge. A related statute, § 265.15, provides that the possession of any dagger, dirk, dangerous knife, or any other weapon is presumptive evidence of intent to use the same unlawfully against another. This latter statute profoundly imposes a burden on a Second Amendment right since it allows criminal intent to be presumed by the exercise of a fundament constitutional right. It was likely constitutionally invalid. Bruen should remove any doubt.
Several states have statutes in force that provide it is unlawful to have weapon knives in a vehicle. Michigan and Connecticut are examples.
Under Michigan law, it is a felony to have a dirk, dagger, or double-edged, non-folding stabbing instrument in a vehicle without regard to concealment or accessibility of the same to the driver or any occupant. While it might be asserted that this Michigan law merely regulates the manner of carry – by vehicle – it substantially impairs the ability of one to carry a weapon in common use “in case of confrontation.”
The Connecticut Supreme Court ruled in the De Ciccio case mentioned above that a knife with a double-edged blade four and ½ inches in length is a weapon in common use. “Commonsense” – as invoked by that Court – would suggest the Connecticut restriction is constitutionally defective.
It is beyond the scope of this piece to examine the body of knife laws across the country in light of the Bruen decision. Definitional or vagueness – due process – issues under the Fourteenth Amendment are implicated and must be addressed by legislators and courts under the highest level of scrutiny as directed by the Supreme Court.
The American Knife & Tool Institute (AKTI) will be updating the state law summaries on its website and continuing its efforts to keep knives in American lives.
Please check our website for the laws in the state where you live, work, and travel. With the strength of numbers, we can make more significant changes to knife laws. Individuals, please consider joining or contributing to AKTI. Business memberships are available here.