Since the U.S. Supreme Court confirmed in two recent cases that the right to carry firearms under the Second Amendment applies to individuals, a multitude of local gun-control ordinances have been overturned, modified or dropped.
Now, a new argument prepared by three legal experts goes further, arguing that the Second Amendment’s protection of “arms” includes knives as well.
The recent landmark Heller and McDonald case precedents could now be used against many local restrictions on carrying knives, the authors say.
The document, posted online on the Social Science Research Network, was prepared by David B. Kopel of the Independence Institute and the Sturm College of Law at Denver University; Clayton E. Cramer of the College of Western Idaho; and Joseph Olson of the School of Law at Hamline University.
The analysis finds knives “are among the ‘arms’ protected by the Second Amendment.”
“They easily fit with the Supreme Court’s Heller definition of protected arms, namely that they be usable for self-defense and typically owned by law-abiding citizens for legitimate purposes.”
The legal experts say statutes that ban or impose special restrictions “based on how a knife opens, or on whether an opened knife can be locked open, cannot survive any form of heightened scrutiny analysis.”
“Indeed, many laws regulating knives cannot even survive rational basis scrutiny. As we have previously observed, knives are among the arms that Americans have a right to bear, and their lower lethality relative to handguns means that there is not even a rational basis for laws that regulate carrying knives more restrictively than carrying handguns,” they write.
“In a practical sense, the most frequent way that Americans exercise their Second Amendment rights is by owning and carrying knives. Knife rights are worthy of judicial protection and of further scholarly study.”
Author Kopel explained in a post at “The Volokh Conspiracy”: “The Second Amendment guarantees the right to keep and bear ‘arms’ – not solely ‘firearms.’ While firearms have always been the paradigmatic Second Amendment arm, there are many other types of arms which are protected by the Second Amendment. By far the most common of the other arms are knives.”
Kopel argues that under the Supreme Court’s standard in District of Columbia v. Heller, “knives are Second Amendment ‘arms’ because they are ‘typically possessed by law-abiding citizens for lawful purposes,’ including self-defense.”
Further, he says, there is “no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.”
He insisted prohibitions on carrying knives in general, or of particular knives, are unconstitutional.
“For example, bans of knives that open in a convenient way (e.g., switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives that, after being opened, have a safety lock to prevent inadvertent closure.”
The research coincides with a move in Congress that could prevent some court cases. The Knife Rights’ Knife Owners’ Protection Act, introduced by Rep. Matt Salmon, R-Ariz., is designed to protect knife owners.
Knife Rights Chairman Doug Ritter said it would “protect law-abiding knife owners traveling throughout the U.S. from the vagaries of restrictive state and local laws.
“As long as possession of the particular knife is legal in the state where the journey starts and ends, and provided the knife is secured … a knife owner would no longer be threatened with arrest simply for traveling from one place to another.”
State laws preempting local restrictions on knifes also recently have been adopted in Alaska and Kansas.
The advocacy group Knife Rights presents details of the case of Zachary Christie at New York’s Downes Elementary.
The report explains the “bright, highly regarded, and well-behaved first grader, was suspended and now faces 45 days in the school district’s reform school for bringing to school his ‘camping utensil’ that includes a knife, fork and spoon.”
“Young Zachary was reported to be so excited about recently joining the Cub Scouts that he wanted to use his camping multi-function tool at lunch,” the report says. “When it fell out of his pocket at school, the sheeple at the school apparently went off the deep end.”
Then there is the case of 17-year-old Eagle Scout Matthew Whalen at Lansingburgh High in upstate New York.
Reports Knife Rights:”His car is stocked with a sleeping bag, water, food and the 2-inch bladed knife, which was given to him by his grandfather, a police chief in a nearby town. After discovering the knife locked in his car, he was suspended … for five days. An additional 15 days was added after a hearing. Now his dreams of attending West Point may be dashed by over-zealous school administrators.”
But the new analysis by Kopel and others explains there may be grounds for challenges to such actions.
“The [Second] Amendment protects ‘arms,’ of which firearms are only one category. Only about half of U.S. households possess a firearm, and many of those households have only one or two firearms. In contrast, almost every household possesses several knives, not including table knives.”
A spokesman for the Second Amendment Foundation said the organization believes knifes are protected by the Second Amendment.
He said that at the Second Amendment was written, daggers, swords and hatchets would have been considered “arms.”
The analysis addresses bayonets, folding knifes, butterfly knifes and Bowies, pointing out that in some places in America folding knifes are restricted, but only if they lock, while in other locations it’s illegal to carry a fixed-blade knife.
“In the movie Crocodile Dundee (1986), when the hero is threatened by a New York City criminal with a switchblade, he says, ‘That’s not a knife’ and then pulls out a much larger blade and says, ‘That’s a knife!’ Defining the different types of knives is a necessary first step because so much of the history of laws regulating knives is built around distinguishing which types of knives were regulated. Even so, the definition of many knife terms, as used in legislation and common parlance, is very unclear,” the analysis explains.
The authors say many state and local regulations distinguish between fixed blade knives and folding knives, “possibly because of the misguided assumption that a fixed blade knife is a weapon whereas a folding knife is just a tool.”
“Of course, many utility knives, such as those used for linoleum installation and wood veneering, are fixed blade, as are many sportsmen’s knives and virtually all kitchen cutlery,” they point out.
The note that some folding-knife laws make further distinction between knives that lock open and those that do not.
Some statutes put folding knives that lock in the same category as fixed blade knives.
“Legislators may think that a locking, folding knife can be used as a weapon, whereas a folding knife that does not lock is a tool,” they write. “The reason for this view is simplistic: a locking knife will not close on your hand when it meets resistance in a fight.
“While this is true, a locking knife also will not close on your hand when it meets resistance when used as a tool,” the analysis says. “The lock prevents the blade from closing on your fingers; this is equally important when roofing a house and when fighting for your life. The distinction between folding knives that lock and those that do not is therefore not a sound basis upon which to make distinctions of what is a weapon and what is a tool.”
Several states outlaw carrying a “Bowie knife” without defining the term, they point out.
“Thus, today’s citizens who are subject to Bowie knife laws have no way of knowing whether they are forbidden to carry a straight knife that closely matches Rezin Bowie’s design or the curved knives that are commonly called ‘Bowie knives.’
“The state’s definition may even include a knife that is neither, but has the words ‘Bowie Knife’ written on it,” they say.
“The chilling effect of this vagueness is obvious.”