This article appeared in Knife Magazine in October 2023.
Know Your Knife Laws – What Knife Owners Need to Know About Bruen
By Anthony Sculimbrene, Attorney and Knife Expert
The trio of important Second Amendment cases–Heller, McDonald, and for knife owners, Caetano (which held that the Second Amendment also covered non-firearms like tasers) received an update last summer when New York State Rifle and Pistol Association v. Bruen was announced. Bruen clarified how the Second Amendment works. The question for us knife owners is whether Bruen gets us closer to concluding that knives, like firearms, are similarly protected. Bruen doesn’t say so explicitly, but it gets us as close to the goal as possible. This article examines why Bruen is so helpful for knife owners, and it representative surveys cases that came down in the year since Bruen to see if they provide new insights.
The main point of Bruen was that the federal court’s analyses of the Second Amendment post-Heller were entirely wrong. After Heller, courts were divided about what kind of tests to use in Second Amendment cases, but they were all what the Bruen Court calls “means-ends” tests. This means that they would analyze the law limiting Second Amendment rights by comparing its impact to the strength of the right that was held. As Justice Thomas noted in Bruen, often that meant that the State won. But Thomas reset the field in Bruen, making clear that these “means-ends” tests were not appropriate. The Second Amendment analysis was not a two-step tango but, instead, a one-step dance. If the law impacted one’s right to own a firearm, it was the government’s burden to show how the law fits within the historical tradition of firearms limitations in the United States. A previous article on a case looking at the Bowie knife gave a good example of how courts examined historical limitations on weapons. Shortening the analysis and placing the burden squarely on the government is, alone, a boon to knife owners. But Bruen offers us even more.
In explaining how to do this analysis, Thomas makes clear an obvious point about using history as a lens for law–a historical analysis is not limited to arms in existence at the time of the Second Amendment’s ratification. Instead, as Thomas describes, we must “reason by analogy.” In doing so, Thomas states that one of our guiding principles in reasoning in this manner should be “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” This guiding principle is notably broader than the original holdings from both Heller and McDonald, which clearly and explicitly limited their scope to firearms. Since McDonald, Cataeno broadened the scope of what is protected to include something like a taser. Now, we get both an edict to reason by analogy AND language that talks of “armed” citizens as opposed to citizens who possess and carry guns. But Bruen goes even further. Similar to the dicta in Heller, there is a historical example in Bruen describing “arms” to include knives. In reviewing Middle Ages English law on armed citizenry, Thomas noted that “in the medieval period, ‘[a]lmost everyone carried a knife or a dagger on his belt…[and] [w]hile these knives were used by knights in warfare…'[c]ivilians wore them for self-protection,’ among other things.” Bruen doesn’t explicitly rule that the Second Amendment protects knives, but these three examples get us awfully close.
Since then, courts around the country have grappled with Bruen. A few have done so with knives as part of the analysis. Here are a few emblematic cases of how Bruen has been interpreted in the year since:
- In Ocean State Tactical LLC v. Rhode Island, the Rhode Island federal court denied an injunction request barring state law banning Large Capacity Feeding Device Magazines (“LCMs”) because they are not “arms” as defined by Heller and Bruen. In dicta, the Court listed knives as arms without comment or limitation. While the dicta on knives is good, this case shows just how literal lower courts can be when interpreting Supreme Court case law.
- In Antonyuk v. Hochul, the New York federal district court for the Northern District reviewed challenges to the same law at issue in Bruen (New York’s CCIA) and enjoined or barred the application of the law to a variety of situations. Part of the analysis includes limitations on carrying arms in sensitive locations, one example of which was carrying a knife at a zoo, thus treating knives like firearms for Second Amendment purposes.
- In Range v. AG of the United States, the 3rd Circuit Court of Appeals held that 18 USC 922(g), a law banning felons from possessing firearms, was not impacted by Bruen because of the longstanding historical trends banning felons from being armed. Included in its analysis was a Kansas law that banned felons from possessing bowie knives.
- In Delaware State Sportsman’s Association v. Delaware Department of Safety and Homeland Security, the Delaware federal district court denied an injunction that sought to prevent a ban on assault weapons and high-capacity magazines from becoming law. In its historical analysis of weapon bans, the court used 19th-century bowie knife laws as an example of historic weapons bans, again treating knives like arms for the purposes of the Second Amendment.
These cases show two trends. First, the courts have been very, very literal in interpreting what is protected by the Second Amendment. Guns and tasers are clearly protected, but gun accessories like high-capacity magazines are definitely not. Declaring something an “arm” and arguing from that assumption, given how literal courts have been post-Bruen, seems like a bad strategy. Second, courts have universally treated knives as arms for purposes of Second Amendment analysis. Based on these cases and the many others, if knife laws are subject to challenge, the Second Amendment would almost certainly apply post-Bruen. The real question would then be whether those particular knives are subject to a well-established history of being banned and/or regulated. If so, Bruen offers no solace.