TX knife laws (observations)

[tyme]

In trying to assure myself that fixed-blade 5.5" knives are legal everywhere in TX except secure areas, I went poking around lexis-nexis and found a few disturbing cases which are discussed below. But I'm relatively confident that only dual-edged knives (or "stilettos"/"poniards" with sharp points and guards, whether or not they have sharpened edges) fall under the "dagger" category, so any single-edged bladed weapon besides switchblades should be legal.

First, the TX 3rd district appeals court (Austin) ruled that it's okay for an officer to examine an open-carried knife, and that such search is not unconstitutional (therefore if the knife is illegal it's admissible). 760 S.W.2d 808 (1988). Conclusion: It's probably best to conceal.

The evidence reveals that Officer Clark of the Austin Police Department, while patrolling in his police car, saw appellant and a woman arguing loudly on a street corner. He stopped his car and approached the pair in order to investigate the disturbance. As Officer Clark approached the couple, he noticed a knife handle sticking out of a sheath on appellant's hip. He took the knife from appellant and removed the knife from the sheath. Upon determining that the knife was in fact a dagger and therefore illegal, Officer Clark arrested appellant.

Second, a (presumably) folding knife, 7" total length, with a guard and blade sharpened 1" from the tip on both sides is a dirk, therefore a dagger, therefore illegal to carry. This is expected due to dualedge=dagger caselaw, but surprising because the knife in question is apparently a folder. TX 5th district appeals court (Dallas), 396 S.W.2d 132. (1965) Conclusion: It's probably best not to carry a knife that's sharpened _anywhere_ on the second edge.

The sole question presented for review is appellant's contention [**2] that the instrument which he was carrying was a pocket knife and not a dagger. A scaled picture of the instrument appears in the record. It is slightly over seven inches in length when open; it is equipped with a double guard, and the blade locks in place when open and is sharpened on both edges for slightly more than an inch from the point.

There's a highly amusing case involving sword carry (in light of the 5th Circuit's individual right interp of the Federal 2nd Amendment in Emerson). Basically they ruled that swords weren't protected under the Federal BoR (citing US v Cruikshank, Robertson v Baldwin (1896), and US v Miller), and that they weren't protected under the State BoR either because the legislature is explicitly given the power to regulate carry. The main decision actually gets it wrong, saying the legislature has a mandate to regulate ownership and carry rathern than simply the power to regulate carry only. Then there's a concurring opinion that's priceless. cite is 653 S.W.2d 944 (1983).

First, justice Powers shoots down a quote from English v State (1871) citing lack of stare decis to decisions made during the Reconstruction. Regardless, the quote reads as a critique of vigilantism, not of weapon carry. Then he gripes about the majority's view that rights are things that are granted by the government. Then he quotes Cooley's Principles of ConLaw and a 1969 Houston L.Rev. article by Levin and Saxe on problems with the collective rights interpretation. At this point everyone reading is probably wondering why this is a concurring opinion. On to the last paragraph:

Even if individuals do possess under the Second Amendment a fundamental right to keep and bear weapons, which the Constitution guarantees against State as well as federal infringement, it plainly is not an absolute right in the sense that it must prevail in all imaginable circumstances and in the sense that the scope of the protection given the right, by the Second Amendment, must be determined solely from a literal reading of the phrase "the right of the people to keep and bear arms, shall not be infringed." For example, I should not think that an individual under the Second Amendment is guaranteed the right to keep and use, free from any statutory restraint whatever, a supply of biological warfare cannisters, a stock of surface-to-air missiles, grenades, flamethrowers, or howitzers and the ammunition for them. Rather, the right I have assumed to be protected by the Second Amendment from governmental infringement would plainly allow some scope for an exercise of the State's police power to preserve public safety and health, commensurate with whatever legitimate State interest may be at stake in the circumstances. But such matters are not before us, for appellant does not attack the reasonableness of Tex. Pen. Code Ann. § 46.02 (1974), as applied to the weapon in question. He prefers instead to make his complaint upon the sole ground that the statute is unconstitutional because under the Second Amendment his right to carry the weapon in question was and is absolute. It is not. ...

This judge understands the 18th century view of rights, realizes the stupidity of citing Reconstruction-era decisions, and sees the 2nd amendment as an individual right encompassing even nukes and anthrax, but he apparently can't read the part that says "shall not be infringed". Unbelievable. To be consistent he should have to exclude such mass-effect weapons from 2A protection and honor the "shall not be infringed" clause.

There's also an interesting U.S. Supreme Court case about enhancements to burglary laws, seeming to imply that mere possession of a legal-to-carry knife cannot be used to enhance a crime (in this case, "burglary with a dangerous weapon"; the defendant had a <4" knife). 538 U.S. 835 (2003).

 

[shootist16]

Thanks for the info. Very informative.

 

[Rex G]

Thanks! This answers one question I am often asked regarding sharpened areas on the backs of blades in Texas. It seems illegal for someone to carry a knife with a sharpened "clip" but it is probably OK to carry a knife with with a sharpened portion distant from the point, such as some survival and diving knives, and the "trisula" on some of the Strider knives.