"Knives and the Second Amendment" Legal Article Published

[Critter]

The first detailed scholarly analysis of knives and the Second Amendment has been published in the University of Michigan Journal of Law Reform (vol. 47, pages 167-215). Authored by noted Second Amendment scholars Dave Kopel, Clayton Cramer and Joe Olson, the paper makes the case for knives as "arms" protected by the Second Amendment, supporting one of Knife Rights' foundational tenets.

Knife Rights applauds these scholars for this long-overdue effort. This is a great start on the sort of scholarly work that needs to be done to assist in potential legal cases down the road. The arguments made and supported in this article will also support our legislative efforts to roll back knife bans and oppose proposed new restrictions on knives.

(Note: If you reviewed an earlier draft this past spring there are many, many changes in the final article that make it worthwhile to review again)

The complete article "Knives and the Second Amendment" can be downloaded at: http://bit.ly/18DguDJ

Kopel writes in his blog: 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.

• 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.
  
• 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.
  
• 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 article provides an explanation of various types of knives, of criminological evidence regarding knives, and of the 19th century panic and case law about Bowie Knives and Arkansas Toothpicks. We then apply the Second Amendment to modern knife laws. We cover the utility of knives for personal self-defense and for militia use, and the constitutional significance of technological changes in knives since 1791. Finally, the article considers some modern prosecutions, statutes, and cases from Washington, Oregon, Indiana, New York, and D.C. We conclude that even under the weakest relevant standard (intermediate scrutiny), blanket bans on the carrying of knives (or of certain types of knives, or of knives with a blade longer than a particular length) as well as bans on the home possession of some types of knives violate the Second Amendment. See the complete blog post at: http://www.volokh.com/2013/11/23/knives-second-amendment/

The complete article can be downloaded at: http://www.kniferights.org/Knives-and-the-Second-Amendment.pdf

 

[W.M.B.]

while I think of my knives as tools, not arms, I think this is certainly a good thing for all of us.

 

[fzla226]

It would be nice to see if you could get the switchblade act overturned that way. It seems like a completely pointless piece of legislation at this point anyway, given it's pretty rarely enforced on a federal level.

 

[SirGeod]

It'd be nice to have this actually go somewhere in terms of the federal switchblade ban or preemption of knives at federal/state/local laws due to the second amendment.

 

[fzla226]

It'd be nice to have this actually go somewhere in terms of the federal switchblade ban or preemption of knives at federal/state/local laws due to the second amendment.

Well that doesn't really work with guns. The Federal preemption. Unless you're talking about federal laws that are passed.

 

[G. Scott H.]

Kopel writes in his blog: 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.

This has always been my contention as well. At the time the 2A was written, knives and swords were still very common "arms." Why would they somehow not be covered under the 2A?

 

[XiaolongJackson]

I think it's great that I can carry my knives legally and have things stay that way but I'm not sure how I feel about knife legislation being turned into a Second Amendment issue, since I tend to see them as tools first.

 

[SOLEIL]

This is a great start. What we really like to see is for other states besides Florida to have knives included in their concealed carry laws. Florida issues a CWFL, concealed weapon or firearm license, which covers all forms of concealable weapons. I can legally carry large folders or fixed blades concealed in Fl. but if I drive 10 minutes into Al. those concealed knives are illegal. It would be great to have all states adopt a CWFL attitude.

 

[SOLEIL]

I think it's great that I can carry my knives legally and have things stay that way but I'm not sure how I feel about knife legislation being turned into a Second Amendment issue, since I tend to see them as tools first.

Guns can be tools also. It took virtually no time at all for nations who banned guns to also jump on the same bandwagon to try to ban knives. The UK has had many "knife buy backs" or voluntary knife turn ins just like the US does for guns. Since they had no constitutional protections for guns anything that can be construed as a weapon has become fair game. Anyone who supports the 2A should also strive to extend those protections to knives.

 

[XiaolongJackson]

Guns can be tools also. It took virtually no time at all for nations who banned guns to also jump on the same bandwagon to try to ban knives. The UK has had many "knife buy backs" or voluntary knife turn ins just like the US does for guns. Since they had no constitutional protections for guns anything that can be construed as a weapon has become fair game. Anyone who supports the 2A should also strive to extend those protections to knives.

Guns are terrible tools. Anything that they can be used for that isn't killing people can be accomplished much more safely with controlled explosives. Also, guns were made primarily for killing people (or at least wounding them), whereas knives are made primarily for preparing food, woodworking, opening envelopes, etc. The scope of utility between the two are completely different. Also, why can't we defend knives as tools? Even if it's not a constitutional right for us to own tools, there's no reason why we can't defend them as such.

 

[Ernie1980]

While I agree with the thought that knives are tools, unfortunality the vast majority of the public disagrees. Because of that, they almost need to be lumped in with guns and protected in the same way. I don't know about the wording, but I agree with the idea!

 

[Phreekedelic]

Guns are terrible tools. Anything that they can be used for that isn't killing people can be accomplished much more safely with controlled explosives. Also, guns were made primarily for killing people (or at least wounding them), whereas knives are made primarily for preparing food, woodworking, opening envelopes, etc. The scope of utility between the two are completely different. Also, why can't we defend knives as tools? Even if it's not a constitutional right for us to own tools, there's no reason why we can't defend them as such.

Ah, so you're the guy who goes hunting with grenades! It's still using it to kill a living thing, but I would argue that in hunting applications the gun is more tool than weapon...

 

[fetzer85]

Ah, so you're the guy who goes hunting with grenades! It's still using it to kill a living thing, but I would argue that in hunting applications the gun is more tool than weapon...

I'm not complaining about hunting but a gun is always a weapon, whether you're shooting a person or a deer. Tools aren't created with the intent of causing death.

 

[SOLEIL]

Guns are terrible tools. Anything that they can be used for that isn't killing people can be accomplished much more safely with controlled explosives. Also, guns were made primarily for killing people (or at least wounding them), whereas knives are made primarily for preparing food, woodworking, opening envelopes, etc. The scope of utility between the two are completely different. Also, why can't we defend knives as tools? Even if it's not a constitutional right for us to own tools, there's no reason why we can't defend them as such.

Guns are one of many tools used for self defense, just as knives are and always were. Guns are also used to propel lines and ropes for maritime uses. Guns are used by those who gather sea ice from icebergs for commercial sale. Guns and cannons are used to help alleviate avalanche conditions. Guns are used to disperse flocks of birds with specialized ammunition for agricultural purpose. Guns are used by farmers and ranchers to protect crops and livestock. Guns have and continue to be used as tools to breach entrances with specialized cartridges to do so. I'm sure there are other uses that I am missing. Sometimes guns are the best tools for a given purpose. I never said that knives could not be defended as tools, but their best protection to be defended under is a constitutional right, not a luxury item as they would be classified by the anti crowd. Defense for people to own knives because they are tools is a terrible and misguided conception. It just won't work. Controlled explosives for hunting, protecting your crops, livestock, homes and family? You sound like an anti-gun type of person saying that the only thing guns are good for is killing people. The same attitude is displayed by the anti knife people in areas where guns have already been banned and people have no right to self defense. If you can not make the connection of the Second Amendment to include knife ownership and use as a right then you are destined to lose that right. Just look to the UK for proof.

 

[SOLEIL]

I'm not complaining about hunting but a gun is always a weapon, whether you're shooting a person or a deer. Tools aren't created with the intent of causing death.

Sure they are. What about a guillotine? What about the thousands of devices and tools specifically made to kill people? To define a tool or weapon with it's ability to kill or it's intent of use is irrelevant.

 

[Bob W]

I don't want my pocketknives "well regulated" the same way guns are.

Is anyone else concerned that by bulking knives together with guns as protected and regulated "arms" we're opening the doors to to the same headaches that gun owners face? Registration, fees, background checks, concealed carry laws, etc.?

 

[SOLEIL]

Unfortunately knives are already covered under concealed carry laws as are many other things depending on where you live. I would also not like knives to fall under the same regulations as firearms. The reasoning behind including them in second amendment rights is to stop the ability of officials at any level to prevent us from being able to posses or carry them at all. The rights of legal gun owners have been challenged and infringed upon for decades. The rule of order has been for officials to violate peoples rights until people or groups stand up and demand that their rights are not infringed upon. This has been going on for as long as anyone can remember. It is a sad state of affairs when people feel as a whole that they must band together to lobby for rights that should have been afforded to them as law abiding citizens without question, by law. Look what happened in NYC. Look how it affected knife enthusiasts of the entire state of NY. They passed ludicrous guns laws overnight that are now affecting millions of people, and this was with second amendment rights supposedly being considered. Imagine what they could do with things not protected by constitutional rights. The best protection for insuring this doesn't happen for knives is to include them in the definitions of the second amendment. I agree with you Bob about not wanting the headaches associated with that, but with the way things have been going it may be the only way to protect our hobbies and desires as it pertains to knives.

 

[Jesse B.]

I'm not convinced that drawing knives into what is arguably the most contentious and divisive amendment to our Constitution is wise. I don't want to see knives become heavily politicized; that way lies madness.

 

[SOLEIL]

I'm not convinced that drawing knives into what is arguably the most contentious and divisive amendment to our Constitution is wise. I don't want to see knives become heavily politicized; that way lies madness.

Agreed. But just because they may be considered to fall under the definitions and/or protections of the 2A does not automatically mean they will fall under the same regulations. The regulations we now submit to for guns were never intended to be in place. They have been imposed by interpretations as to the original intent of the document. Due to these interpretations there has been a constant struggle to determine the best way to protect these rights to those whom are deemed to deserve them. As a result of lawlessness and the actions of those with criminal intent the 2A has been interpreted in numerous ways since before any of us were born. That is why we, the people, need to do our homework and help, advise, learn and support those organizations whom represent our beliefs and intents as to how to regulate the process, or to determine if it even needs any regulation. To keep it clear and concise with as little room as possible for spinning it into something unduly burdensome will be to everyones best interest. This has already been done with the definitions of assisted knives vs. those of switchblades. If need be it can also be done for knives if they can be protected within the 2A interpretations.
I apologize to the Mods as this is probably getting too far into the political discussion realm for this forum.

 

[ZachFowler45]

Guns are terrible tools. Anything that they can be used for that isn't killing people can be accomplished much more safely with controlled explosives. Also, guns were made primarily for killing people (or at least wounding them), whereas knives are made primarily for preparing food, woodworking, opening envelopes, etc. The scope of utility between the two are completely different. Also, why can't we defend knives as tools? Even if it's not a constitutional right for us to own tools, there's no reason why we can't defend them as such.

I could make the argument that guns were created for tools because they are commonly used for the hunting of food. Guns and knives are BOTH tools used for the same reasons. We shouldn't have to defend our right to own them, but our rights are under attack. So, it's no use to try to say knives are somehow better than guns.