This is the first in a series of posts about legal cases and knife laws. What I write here is my opinion and not legal advice. If you need legal advice hire a lawyer.

In the late 1780s, early 1790s James Madison was concerned that the US Constitution vested too much power in a central national government. Having just been through a war with one of the most centralized and powerful governments in the history of the world, Madison, and a few other rogue elites, were determined to put safeguards in check. One of those safeguards was the Madison-drafted 2nd Amendment. From the moment it was ratified in 1791 until 2008 the 2nd Amendment went largely untouched by the Supreme Court. While the 5th Amendment (due process) and the 1st Amendment (freedoms of expression and association) were routinely the subject of Supreme Court review, the 2nd Amendment wasn’t. Its odd, but not unusual. There are other parts of the Bill of Rights like this. There is essentially no case law on the 3rd Amendment, the one about quartering troops, because the situation that caused the quartering of troops no longer occurs, but the 2nd Amendment going as long without treatment from the Supreme Court is weird by comparison because people carry arms all the time. Then in 2008 that all changed with District of Columbia v. Heller, 554 US 540 (2008).

Heller’s Holding

Heller is good for proponents of the Second Amendment. After thousands of words written about what the Amendment meant when it was passed, Scalia gets to the point—the Second Amendment provided individual citizens with the right to bear arms, specifically, in Heller’s case, a firearm. Furthermore, Scalia writes that laws that impact the right to carry are void unless the government can show that the item being regulated is subject to a longstanding historical prohibition. He noted that even at the time the passage of the Second Amendment, there were weapons that people KNEW were prohibited. Heller’s holding doesn’t give someone a right to own and carry an RPG, but only a limited class of arms, defined by historical analysis. Sawed off shotguns, for example, have a history of being banned or heavily regulated, so current laws that do so will likely be upheld. Thus Heller creates a two-step analysis (despite with Thomas writes in Bruen): 1) does the law impact an individual’s right to carry a specific arm; and 2) Is that arm subject to a longstanding history of regulation? Scalia also notes that prohibitions on certain classes of people owning guns is also still constitutional (as no constitutional right is absolute) and thus laws banning felons from owning firearms are fine as well.

This all sounds great. But there is a big cavaet for knife owners. Heller does not, by its own language, apply to knives. There is a passage where Scalia references a hunting knife and another where he references a source that, in turn, references an edged tool, but no where in the opinion does Heller say “knives are protected like firearms for purposes of the Second Amendment.” This is critically important because legal cases are narrowly tailored. After Heller, for example, people litigated whether the Second Amendment protected “high capacity magazines.” Uniformly lower courts have held that Heller and its progeny only apply to firearms themselves and so, for example, legislation regarding high capacity magazines does not implicate the Second Amendment.

Other cases get closer to adopting knives as “arms” for purposes of the Second Amendment, specifically Caetano v. Massachusetts and NYSRPA v. Bruen, but, Heller is almost completely silent on this issue.

A Problem with Heller

If you read Heller you will be confused as to whether you are reading a history book or a legal opinion. That’s because the author of Heller, Antonin Scalia, was one of the chief proponents of a theory of legal interpretation called Originalism. Unfortunately, Originalism is complete and utter intellectual garbage. Worse yet, it is disingenuous intellectual garbage.

Scalia’s Originalist method (or really Robert Borque’s Originalist method; Scalia wasn’t the first Originalist, just the most prominent) takes the following approach to interpreting legal documents. First, they look at the plain language of the document. If using the plain language and its everyday meaning makes the principle of law clear, the analysis ends. If not they look to history. In the case of more recent legal documents like new statutes, they look to legislative history. Up to this point Originalism isn’t all that different from general legal interpretation. The problem arises in the next step. If there is no legislative history, they look to historical sources to determine how people at the time the legal document was created would have understood the words.

Scalia claims that it “binds” judges to the original meaning of the law and eliminates or severely curtails judicial discretion and fanciful judicial interpretations. This is utter nonsense. What it does is allow the judge to pick and choose sources so as to arrive at an interpretation of the law they want. It is a shell game where “judicial interpretation” is eliminated and replaced by “judicial selection of sources” which has the exact same effect—giving judges the power to interpret the law however they choose.

If you consult a historian, a newspaper, or your own personal experience, you will see that sources disagree. Think of how some words work. If you say “He is deathly sick” you mean one thing, but when you say “That is a sick paint job on your car” you mean something else. Finding the single, shared meaning of a word is hard, even when you aren’t peeling back centuries of time. Language conflicts, sources conflict, and history conflicts. Also you will notice that most sources are written by the ruling elites and not the vast majority of the American populace. As a result, picking between historical sources is a fraught thing. Prioritizing one over the other is just as much an act of judicial creation as the textual analysis method that serves as an alternative to Originalism. Instead of saying: “I read the law and here is what it means” the Originalist judge is saying: “I read the law, I picked the historical source I like the most, and it says this is what the law means.” Originalism is, without question, a fraud. Worse yet, those who adhere to it are smart enough to know it is a fraud.

There are alternatives. Religious, classicist, and philosophical scholars have been debating how to interpret texts for thousands of years. Originalists pretend like they have the only solution, but do so by being willfully ignorant of this rich history. Hermeneutics is nothing new, but it is completely left out of the debate when it comes to legal interpretation. Why? Because it does not serve the ends Originalist judges want which is a view of the law and government that matches their personal beliefs and preferences.

Why is this a problem if Heller got the result we want? Because these theories of legal interpretation are trends and eventually those trends run out of steam. When they do, the cases premised on them get revisited in ways that are problematic. The abortion case, Roe v. Wade, was based on a pre-Originalist method of interpretation called textual analysis. That is out of vogue now and so when Originalists got ahold of the Roe opinion at the peak of their power they blew it up in Dobbs. Dobbs is a warning sign to everyone that cares about the law—if a case is closely wedded to a method of interpretation, it will fall once that method of interpretation is out of vogue. Heller is inextricably married to the intellectually fraudulent Originalist method of interpretation. When it is out of vogue (note I wrote “when” and not “if”), Heller is the case people will be coming for first given the polarization in our society around firearms.

2A legal advocates should always be on the lookout for ways to ground the right to bear arms that are untethered to a flavor of the week theory of judicial interpretation. My preference, of course, would be to adhere to stare decisis, the legal doctrine that holds that previous cases limit future rulings. But judges on the Supreme Court seem to make it their mission to ignore stare decisis (even when they testify under oath that they will NEVER ignore it). After all, what fun is there in being one of the kings or queens of the law if dead judges get to tell you what to do?

What Knife Owners Can Use

Because knives weren’t specifically mentioned, Heller isn’t all that useful, but it does lay out how the analysis will work when knife laws are challenged. These challenges, once courts agree that knives are arms (which, given subsequent cases, I think is very likely) will turn on whether there have been historic bans on specific kinds of knives. Looking through history we see a lot of knives that have been banned or heavily regulated. Oddly Bowie knives have a longstanding tradition of being banned or regulated in hte past, but aren’t, for the most part, anymore. I really don’t get the old timey Bowie bans. How does a blade’s shape or handle construction make it more or less dangerous than a knife of an identical size?

Other knives that fall into this category include cane swords, dirk knives (small more concealable swords), stilletos (concealable double edged daggers), daggers, gravity knives (knives where the blade is held in the handle and then drops out by gravity or centrifugal force), balisongs (or butterfly knives) and, switchblades (or automatic knives). In states that have laws restricting knife ownership you will find some or all of these listed. All of these knives will face extra scrutiny under the Heller analysis even if they are functionally, but not mechanically, identical to undisputably legal knives (a bearing pivot flipper is just as fast and just as “automatic” as an auto, but it works differently, so, for arbitrary reasons, its okay and the auto is not). These knives seem to fall into one of two groups: too stabby or too concealable. Stilletos and many automatic knives seem to scare people because they are bit of both. Interestingly, looking at these knives, it is even less clear why Bowie knives are found on these lists.

There are cases challenging knife laws all over the country, especially since Bruen. I write a monthly column on knife laws for AKTI that can be found in Knife Magazine and you can read more knife law stuff there. You can also find more about knife laws at AKTI.