This article appeared in Knife Magazine in June 2023.
Know Your Knife Laws – Bruen Decision – A First Glance
By Anthony Sculimbrene, Attorney and Knife Expert
Introduction
In 2008, in a landmark case called District of Columbia v. Heller, 554 US 570 (2008), the US Supreme Court, for the first time, examined whether the Second Amendment conveyed a personal right to bear arms. The opinion, written by noted legal historian and originalist Antonin Scalia, used historical documents to determine that the intent of those drafting the amendment (their “original” understanding) was, in fact, to convey a personal right to bear arms. The case has gone on to spawn a number of important legal decisions, but the majority of them deal explicitly with firearms. How does Heller impact the right to carry a knife?
Heller and Firearms
While Heller clearly protects an individual’s Second Amendment right to carry a handgun, as Dick Heller was doing in the case that spawned his name, the case makes clear that some weapons are outside the protection of the Second Amendment (this is common in constitutional law–the First Amendment, for example, does not protect someone who yells “Fire!” in a crowded theater). Scalia notes that “[i]n the colonial and revolutionary war era, [small-arms] weapons were used by militiamen and weapons used in defense of person and home were one and the same.” Heller at 624-625. Scalia then uses this phrase to describe what is protected by the 2nd Amendment: “weapons…typically possessed by law-abiding citizens for lawful purposes…” Id. This does not include, as he points out, “machineguns” and “short-barreled shotguns.” However, all of this is set against the background of the case at hand. Scalia notes that the only issue before the Court is a “law that totally bans handgun possession in the home.” Id. at 628. What about knife owners?
Knives in Heller
There is some evidence in Heller itself that the 2nd Amendment extends beyond simply firearms to include other weapons “typically possessed by law-abiding citizens for lawful purposes.” First, in the paragraph describing what weapons are and are not protected, one of Scalia’s sources is specifically focused on bladed weapons. He cites George C. Neumann’s history of edged weapons (complete with some 500 illustrations) in the Revolution. See George C. Neumann, Swords and Blades of the American Revolution (1995). This citation alone makes clear that knives were something the justice was thinking about when writing Heller. But he explicitly mentions knives elsewhere in the opinion. In describing historical sources written around the time the Second Amendment was drafted, Scalia noted that “arms” like those covered by the Second Amendment were banned by certain religions. Specifically, he noted that the Quakers banned arms at the time of the Revolution, and this reference to “arms” included items used for hunting, such as “a hunting rifle or knife.” Heller at 590. Thus, there are three arguments emerging from the text of Heller itself that the 2nd Amendment applies to items other than just firearms. Scalia’s formulation of what is protected (weapons “typically possessed…”), scholarly sources, and an explicit link between rifles and knives all show that the justice believed that the 2nd Amendment extended beyond guns.
Caetano v. Massachusetts
In one of the stranger opinions to come out of the US Supreme Court in recent times, Caetano v. Massachusetts, 136 S.Ct. 1027 (2016) held that the 2nd Amendment and Heller “rejected the proposition ‘that only those weapons useful in warfare are protected.’…” In doing so, the US Supreme Court overturned a conviction for possession of a stun gun. Unfortunately, for those looking for details about what is protected by the Second Amendment beyond firearms, this opinion was a “per curiam” or unanimous opinion. Such opinions do not have stated authors are typically very short. A win is a good thing, of course, but without more, its precedential value is limited. Fortunately, Justice Alito wrote a concurring opinion in Caetano. Concurring opinions are not binding authority, but they can provide hints at where the Court may go in the future. Furthermore, given the current alignment of the Court and Alito’s leadership role among the conservative justices (he is the author of Dobbs v. Jackson Women’s Health Organization, 597 US __ (2022), the most highly anticipated US Supreme Court opinion ever), his concurrence here is abnormally important.
The facts of Caetano were perfect for a broadening of the Second Amendment. Jamie Caetano was attacked by her boyfriend and hospitalized. After being released from the hospital, she was rendered homeless and was living in fear for her life. Caetano at 413. Caetano had obtained multiple protective orders, and yet she was still the victim of abuse. Seeing her in this state, a friend gave her a stun gun to protect herself. Caetano actually brandished the stun gun when her abuser confronted her, and it staved off an assault. Later, after being mistakenly accused of being an accomplice to shoplifting, police searched her purse and found the stun gun, which is banned under Massachusetts law. See MGL ch. 140, sec. 1311. After stipulating to facts, the legal issue of whether Heller invalidated the Massachusetts law banning stun guns reached the state Supreme Court, where the law was upheld. The US Supreme Court reversed unanimously, but Alito took time to write a separate opinion that provides significant legal guidance (though, as mentioned above, no binding precedent) on the Second Amendment and non-firearm weapons.
First, Alito reasons, if firearms cannot be prohibited entirely, then less dangerous weapons, such as a stun gun, cannot be either. Caetano at 418. Alito also makes clear that even though stun guns are less common than firearms, their relative rarity as a means of self-defense does not remove them from Scalia’s constitutional class of weapons “typically possessed by law-abiding citizens for lawful purposes.” Here, Alito states a point especially apropos to knife owners: “The observation [about the rarity of stun guns] may be true, but it is beside the point. Otherwise, a State would be free to ban all weapons except handguns…” Id. at 420. Alito also points out that while rarer than firearms, stun guns are “widely owned and accepted as a legitimate means of self-defense across the country…Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment.” Id. at 420. This logic applies without alteration to knives. Alito’s parting comment is an especially powerful one: “If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.” Id. at 422.
Conclusion
Virtually every argument in Caetano applies with equal force to knives. Knives are weapons “typically possessed by law-abiding citizens for lawful purposes.” They are at least as common as stun guns. And they are “widely owned and accepted as a legitimate means of self-defense across the country.”
Unfortunately, Caetano’s logic has not been consistently applied to knives in Second Amendment litigation across the country. In Washington State, for example, the state Supreme Court held that a paring knife was not an “arm” entitled to Second Amendment protection because it was not an instrument designed as a weapon traditionally or commonly used by citizens for self-defense. See City of Seattle v. Evans, 184 Wn.2d 856 (Wash. 2015). The fact that a paring knife is virtually indistinguishable from something small game knives like a bird and trout pattern that was regularly used in hunting and defense even at the time of the Revolution evaded the court’s analysis or, apparently, the litigator’s arguments. Similarly, a Massachusetts (see a pattern?) trial court found that an automatic knife was a “dangerous and unusual” weapon and thus outside Second Amendment protections because it was, again, not a weapon traditionally or commonly used by citizens for self-defense. Commonwealth v. Pineiro, 35 Mass. L. Rep. 543 (Mass. Super. Ct. 2019). This, too, ignores knife history, where automatics were commonly used in self-defense in various parts of the world or were used by those with disabilities (particularly veterans) as a means of self-defense.
The fight to ensure the Second Amendment applies to knives is not over. Those arguing these issues need to be especially attuned to knife history and knife patterns. Scalia looked to history to shape the Second Amendment’s application to firearms. Alito and Thomas, both originalists as well, would certainly be open to such arguments. Hopefully, other courts will be as well.