This article appeared in Knife Magazine in July 2024
Know Your Knife Laws – Why History Matters – Ocean State Tactical v Rhode Island
By Anthony Sculimbrene, Attorney and Knife Expert
If you’re a knife guy, you have at least a passing fondness for Bowie knives. In the same way, if you are a car guy, you have a passing fondness for a Highland Green 1968 Ford Mustang GT Fastback. But for a long time, Bowies were the most restricted type of knife in the US. These historical restrictions tell us a lot about how Bowies were perceived but, more importantly, how knife restrictions will fare under the historically informed legal standard outlined in Bruen. A recent case out of Rhode Island provides us with some very interesting insights into the history of knife laws.
Remember, in Bruen, restrictions on the Second Amendment are per se invalid unless the government can prove that the restrictions are part of a historical tradition of restricting weapons in the same or similar circumstances. With this new rule, weapons laws across the country have come under new scrutiny. Included in these laws are restrictions on weapons accessories. In Ocean State Tactical v. Rhode Island, 2024 US App LEXIS 5723 (1st Cir. March 7, 2024), the First Circuit Court of Appeals examined a law in Rhode Island banning so-called “large capacity feeding devices” or LCMs. LCMs are any device that allows ten or more rounds to be loaded into a semiautomatic weapon. They were part of a series of laws in Rhode Island aimed at various firearms accessories like bump stocks, bombs, and armor-piercing rounds. Ocean State Tactical argued that the LCM ban violated Bruen. Rhode Island disagreed and prevailed at the federal district court level. Ocean State Tactical appealed, and the First Circuit upheld the district court’s ruling. In doing so, they provided the most thoroughgoing analysis of knife laws post-Bruen. The knife that was the subject of these restrictions was the Bowie knife.
While not the same as restrictions on LCMs, Bowie knife restrictions were a historical analog that Bruen makes relevant. The Court noted that at one point, 49 states and the District of Columbia had bans on Bowie knives. These knife bans, the court notes, were premised, in part, on the knife’s design. They were “a distinctive weapon with a ‘longer blade designed expressly for fight, rather than hunting or utility.” The Court also found old cases that determined that Bowies were “well-suited to cutting or stabbing.” They noted that the historical record made it clear that “Bowie knives were considered more dangerous than firearms.” Quoting the Texas Supreme Court, the First Circuit explained, “[t]he gun or pistol may miss its aim, and when discharged, its dangerous character is lost, or diminished at least…The bowie-knife differs from these in its device and design; it is the instrument of almost certain death.” Ocean State Tactical at 17, quoting Cockrum v. State, 24 Tex. 394, 402 (1859).
The court in Ocean State noted that, like LCMs, Bowies could be used for self-defense, but that alone is insufficient under Bruen. And since bans on Bowies are replete in the historical record, a ban on LCMs meets the test under Bruen.
This case is basically a road map for how the government could argue that Bruen does not invalidate the Federal Switchblade Act, an issue that is pending in court right now. I think the key here is to differentiate the historical record related to the Bowie from that of automatic knives. While the Bowie was almost universally banned, even as early as 1958 when the FSA was enacted, there was no countrywide consensus in terms of state law regarding automatic knives. Furthermore, unlike with the history of the Bowie, even places where those bans were enacted have moved away from them, with a large majority of states now repealing their state ban on automatic knives. Finally, unlike with the history of the Bowie knife, the history of the FSA is comparatively much more contemporary. There is no long-standing tradition of banning autos; the FSA was passed within living memory and almost immediately chipped away both on the federal level and from state to state. I also think it is important to point out just how anachronistic the language used in Bowie ban cases is –you’d be hard-pressed to find a person today who is more afraid of a Bowie knife than a gun. There is a sense, given the language, that all of these weapon bans are no more than moral panics instantiated into law. This sense of unjustified moral panic is not part of the Bruen analysis, of course. Still, the point should be made – hysteria-based legislation does poorly when viewed from a historical perspective.
The American Knife & Tool Institute continues to chip away at the restrictions on knives at the state level and laying the ground work to again introduce a repeal of the Federal Switchblade Act. You can stay current on knife laws at www.stateknifelaws.com.