This article appeared in Knife Magazine in August 2024
Know Your Knife Laws – Is the Federal Switchblade Act Invalid? Knife Rights v Garland
By Anthony Sculimbrene, Attorney and Knife Expert
Does Bruen invalidate the Federal Switchblade Act (FSA)? That was the question Knife Rights brought up in the case of Knife Rights et al. v. Garland, a 5th Circuit case that resulted in an order on June 3, 2024. The answer, unfortunately, is that we don’t know. The reason we don’t know is that the Department of Justice got an order in its favor dismissing the case because the parties lacked standing. In other words, the case was dismissed on procedural grounds. The Court never got to the substantive issue of whether Bruen invalidates the Federal Switchblade Act. Let’s look at what happened in greater detail.
Federal courts are, as they often write, courts of limited jurisdiction. This means they cannot hear every case about every issue. In order to get a case into federal court, you must follow the proper procedures. One part of those procedures is proof of something called standing. Standing means that the parties bringing the case have something at stake that the Court needs to resolve. The standing requirement prevents people from getting advisory opinions from courts–that is, standing prevents people from forcing courts to weigh in on various issues that could be problems but aren’t yet. It’s a good rule. It prevents courts from getting mired in hypotheticals. More importantly, it requires the parties to have real problems with actual factual issues for the Court to resolve.
In Knife Rights et al. v. Garland, there were two kinds of plaintiffs–actual people and Knife Rights itself. The people involved were individuals who wanted to own, carry, and sell automatic knives, separated into two groups by the Court: “individuals” and “retailers.” Knife Rights is a non-profit, organized to protect the Second Amendment rights of citizens. Both the individuals and the organization claimed that Bruen, among other cases, meant that the Federal Switchblade Act violated the Second Amendment. These people and Knife Rights then sued the Department of Justice (DOJ), represented by Attorney General Merrick Garland. The people claimed that they had standing because they were worried that their Second Amendment rights to own, carry, and sell automatic weapons would be infringed by the federal government enforcing the Federal Switchblade Act. Knife Rights claimed they had standing through their members. The DOJ then filed two motions to dismiss, one based on a lack of standing and another based on failure to state a claim. Under 5th Circuit precedent, the Court is obligated to consider the standing challenge first, and, in this case, it was dispositive. They did not reach the motion to dismiss for failure to state a claim. The Court held that the individual plaintiffs and the retail plaintiffs lacked standing.
Standing is proven via a three-part test whereby the plaintiffs must show: 1) actual injury, 2) a causal connection between the injury and the conduct that is the subject of the litigation, and 3) that a favorable court ruling could address the injury. Here, the Court found that the individual and retail plaintiffs lacked proof of an actual injury. The fact that they were worried about the FSA impacting their behavior is not enough, the Court held. In dicta, the Court noted that there has been very little enforcement of the FSA, noting only four enforcement actions since 2004. Those two factors – the hypothetical fear and the lack of current enforcement action – mean that the individual and retail plaintiffs lacked standing.
The Court then found that Knife Rights did not have standing either, noting that individual members would not have standing for the same reason the individual plaintiffs, in this case, lacked standing. They also noted that while Knife Rights devotes resources to litigating issues related to Bruen, that alone is not enough to confer standing because litigating issues related to knives IS a routine activity for Knife Rights, not some unexpected burden that would constitute harm for purposes of standing.
Critically, the Court also barred Knife Rights from amending their complaint to meet the standing challenge. They did so because there is no “evidence that the statutory provision has ever been enforced against them or regularly enforced against others.”
This was not the outcome we wanted. It leaves the issue of whether Bruen renders the FSA unconstitutional entirely unresolved. It also provides no guidance whatsoever on how to apply Bruen’s historical analog test to newer bans like the Federal Switchblade Act, which was enacted much later than the bans considered in other cases. Finally, it provides no clear path for how these issues could be litigated in a civil suit. If the only way to get standing is to have the Act enforced against a person, then the only way to challenge it is in a criminal case.
Going forward, there are a few things to keep in mind when litigating. Notably, these are all my opinion. First, litigating this matter civilly is much more difficult than it would be in a criminal case. Not only is there a standing issue in this case, but there is also the burden and standard of proof. In a criminal case, both are drawn in favor of the person possessing the knife. In a civil case, they are drawn in favor of the government. Second, litigating the FSA in a criminal case would raise the stakes. In a civil case, the worst that happens is people lose money. Courts care about that, but not as much as people losing their freedom. If one’s freedom hangs in the balance, courts are more thorough and exacting in their analysis. Finally, litigating the matter in a criminal case would free the issue from political strictures. Second Amendment litigation is pretty clearly a core Republican issue. Second Amendment litigation that also happens to protect the rights of the Accused in a criminal has broader political support. While I do not think judges are products of which party appointed them, litigating issues that are not easily sorted in the political categories makes it harder for the cases to be hand-waved away as political theater.
Knife Rights should be commended for pursuing this issue on behalf of all of us.
Unfortunately, we got a punt from the 5th Circuit. We can still work on this issue legislatively and perhaps in different kinds of legal cases.
The American Knife & Tool Institute (AKTI) advocates for the knife industry and all knife owners, promoting knives as critically essential and valuable tools in our daily work and recreational lives. AKTI’s website includes the knife laws of all fifty states and valuable articles to help understand them. We continue to efforts to repeal the 1958 Federal Switchblade Act as sponsors and the situation in Congress allows.