This article appeared in Knife Magazine in March 2024.
Know Your Knife Laws – The Ripple Effects of Bruen Continue
By Anthony Sculimbvrene, Attorney and Knife Expert
T
he ripple effects of Bruen continue as governmental units, federal and state, struggle to figure out just how to apply its test. A recent case out of California, Miller v. Bonta, 2023 US Dist. LEXIS 188421 (D. S. Cal. October 19, 2023) helps tease out exactly how the Bruen test works. To recap: for a law restricting access to arms to survive constitutional scrutiny, the government has the burden to prove that there is a historical record of that particular arm being regulated. The question left unanswered is what kind of record the government can use to demonstrate a history of regulation. In Miller v. Bonta, they chose incorrectly (really incorrectly in some cases), and as a result, we get insights both into Bruen and into knife regulations that could be challenged.
Pre-Heller, the California state legislature passed a ban on “assault weapons.” The law, California Penal Code section 30515(a), had a three-part test for determining whether a weapon was an assault weapon. Many common firearms, including the AR-15, fell within the definition of “assault weapon” outlined in the law. Critically, unlike many other states, California lacks a Second Amendment equivalent in its state constitution. Gun owners asked for an injunction barring the law from continuing to have an effect, and Rob Bonta, the California AG, objected.
After Heller and especially Bruen, the California law came under heavy scrutiny. Litigation went to the federal district court in Southern California and then up to the 9th Circuit. The matter was sent back to the district court, post-Bruen, and the parties were allowed to rebrief the issue in light of Bruen’s holding. Of particular interest to the Court was an analysis of “a national historical tradition of firearm regulation.” Id. at 27. The Court ordered the State to compile a list of relevant laws from 1791 (when the Second Amendment was ratified) until twenty years after the Fourteenth Amendment. The results, according to the Court, ranged from irrelevant to outright racist. In compiling this list, the State relied on regulations of arms for historically disfavored classes of people. The Court was aghast: “Incredibly, the State asks this Court to treat as analogues 38 laws…which applied only to particular disfavored groups of people, such as slaves, Blacks, or Mulattos. Those laws are irrelevant to the ‘assault weapon’ ban challenged in this case. Even if they were, this Court would give such discriminatory laws little or no weight.” Id. at 28. Note to future state officials arguing Bruen cases–don’t stake your case on laws premised upon bigotry and racism. It is an especially bad move.
Faced with very little historical record regarding limitations of certain kinds of firearm ownership, the state of California then presented laws prohibiting certain types of weapons such as “bladed weapons, melee weapons, blunt weapons, or lead-filled weapons.” Id. at 33. The Court rejected these as irrelevant: “Bruen teaches that a state’s burden is to identify a historical tradition of firearm regulation, not a tradition of knife regulation.” Id. The Court then turns to a classic whipping boy of the weapons debate–the bowie knife. There, the Court declares, is a weapon with a history of regulation that would be relevant in a Bruen analysis. But the link between the firearms that are prohibited in California’s law and a bowie knife is pretty tenuous. It is not a history of regulation nor what Bruen calls a historical “twin.” Finally, the Court points out that the “reasoning by analogy” that is allowed for weapons that have no historical analogy is also limited when comparing knife regulation to gun regulation. “Knife laws may not be completely irrelevant, but they are pretty close. The Supreme Court does not look to knife laws for a gun ban. This is not to say that [b]owie knives are not ‘arms’ imbued with Second Amendment protection. Historical knife laws would be relevant in evaluating a modern prohibition on knives.” Id. at 59. The Court then notes that even if knife laws were sufficiently similar, it wouldn’t help much. Even the Bowie knife, the villain in all of these legal cases, wasn’t all that heavily regulated historically speaking.
The Court then reviewed pistol laws and the expert testimony from historians and weapons experts. In the end, the Court struck down California’s law, enjoining Rob Bonta, the California Attorney General, from enforcing it. Undoubtedly, there will be more on this, but Miller v. Bonta helps sharpen our understanding of Bruen’s historical regulation test. And painfully, for those of us who enjoy bladed tools, it continues the historical prejudice against Bowie knives. Oddly, as this case makes clear, under the Bruen test, laws banning Bowie knives will survive constitutional scrutiny, but laws banning the vastly more lethal AR-15 won’t. Such is the fate of law when it depends not on facts, logic, or reason but on history alone.