This article appeared in Knife Magazine in December 2021.
Know Your Knife Laws – Knife Laws Scrutinized
By Daniel C. Lawson, Attorney and Knife Expert
The U.S. Supreme Court heard oral arguments in the case of New York State Rifle & Pistol Association, Inc v Bruen in early November 2012. The essential issue presented in Bruen is to what extent the state of New York may restrict the bearing of arms – particularly handguns – for the purpose of self-defense beyond one’s home. New York State law is highly restrictive regarding carrying arms, especially handguns, outside of an individual’s residence. It contains a provision whereby one may apply for a license to carry a handgun, but that process is fraught with burdensome obstacles, opportunities for unaccountable bureaucrats to delay, and ultimately unbridled discretion to deny the application.
In other words, there is a right, but don’t bother yourself. Most likely, the state will deny it after you’ve jumped through all the hoops.
Among those who study the Supreme Court, there is a consensus that it will likely hold the state law with its “may issue” provisions inconsistent with the U.S. Constitution, particularly the Second Amendment. Considerable discussion and speculation continue regarding the standard of scrutiny to be applied by the Court.
The Supreme Court has long employed different degrees or standards of review when considering the constitutionality of laws. Typically, three such standards are recognized. The lowest standard is often referred to as “minimum rationality,” and it is applied to government restrictions that involve a non-fundamental right. Under this standard, a restriction will survive unless it is “arbitrary, discriminatory, or demonstrably irrelevant” to the action regulated. In practice, government restrictions are almost never disqualified under this test.
The next step up the standard of review ladder is “intermediate scrutiny,” which provides that a law – a government restriction – must be narrowly tailored to accomplish or serve a significant governmental interest.
Strict Scrutiny is the most rigorous and exacting standard. It requires that the restriction must be narrowly tailored to accomplish the government’s compelling objective. Encroachments on the protections enshrined in the Amendments to the Constitution, referred to Bill of Rights, are likely fundamental in nature.
Both intermediate and strict standards require that the restriction be “narrowly tailored.” A tailor makes and fits a garment for a specific individual. The customer is carefully measured. The cloth is then cut and sewn to achieve a close fit. The ‘Strict Scrutiny’ standard limits the government’s encroachment to those issues where a “compelling objective” is the basis for interference with a fundamental right. Accordingly, even a “significant governmental interest” does not allow for infringement.
The U.S. Supreme Court did not specify a standard of review in the 2008 decision in the District of Columbia v. Heller, 554 U.S. 570, which significantly held that the Second Amendment preserved an individual right and that a District of Columbia prohibition regarding handguns held and used for self-defense in the home:
Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” would fail constitutional muster.
The concluding paragraph of the majority opinion states in part:
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. . . But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.
Heller clarified, in addition to the individual rights application of the Second Amendment, two other key points: “arms” means “any thing that a man wears for his defense, or takes into his hands, or useth in wrath to cast at or strike another” and to bear arms ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.”
Knives are within the universe of things people might wear or carry in a pocket for the purpose of being equipped for various contingencies, including defensive action.
Two years after the Heller decision, the U.S. Supreme Court held in McDonald v. City of Chicago 561 U.S. 742 that the Second Amendment guarantee was fundamental to our scheme of ordered liberty and, as such, incorporated by the 14th Amendment as binding on the States:
Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right.
The McDonald case involved ordinances in Chicago and Oak Park prohibiting handgun possession which were found to be constitutionally invalid. The standard of review was not specifically stated, although reference to the basic nature of the right suggests strict scrutiny is appropriate.
The Supreme Court’s decision on the New York Bruen case will likely be announced in the second quarter of 2022. It will be the first instance in which the U.S. Supreme Court considers restrictions on arms beyond the home. The decision will likely have some application to arms in general, including knives. This will certainly be the case if the Strict Scrutiny standard is held to be applicable.
Readers of this “Know Your Knife Laws” column will readily recognize that knife laws across this country are more often crazy-quilt than a carefully-tailored suit.
An Illinois law 720 ILCS 5/21-6 – Unauthorized Possession or Storage of Weapons is an example of an extremely poor fit between significant government interest or compelling objective and the scope of the restriction. The Illinois legislature found in 1976 that:
[T]he unlawful disruption of academic communities and the willful and malicious destruction of academic property’ . . . impaired the ability of Illinois ‘academic communities to provide an atmosphere in which serious study and research may proceed in a calm and orderly way.
This finding was offered as the reason for 720 ILCS 5/21-6, which provides:
(a) Whoever possesses or stores any weapon enumerated in Section 33A-1 in any building or on land supported in whole or in part with public funds or in any building on such land without prior written permission from the chief security officer for such land or building commits a Class A misdemeanor.
(b) The chief security officer must grant any reasonable request for permission under paragraph (a).
The restriction applies to, among other things, any knife with a blade at least three inches in length and on any land or in any building supported in whole or part with public funds, which include highways, as well as any commercial office building with a federal, state, or local government tenant.
A New Jersey statute, 2C:39-5. Unlawful possession of weapons provides:
- Other weapons. Any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree.
A “fourth-degree” crime is a felony under New Jersey law and is punishable by imprisonment for up to 18 months and a fine of up to $10,000. The law allows the state to prosecute based on what it determines to be “not manifestly appropriate” circumstances of possession.
A City of Philadelphia, Pennsylvania, ordinance, 10-820. Cutting Weapons in Public Places prohibits all knives on public property or streets unless it is “actually” in use in connection with a “trade, profession, or calling”:
(1) Cutting Weapon. Any knife or other cutting instrument which can be used as a weapon that has a cutting edge similar to that of a knife. No tool or instrument commonly or ordinarily used in a trade, profession or calling shall be considered a cutting weapon while actually being used in the active exercise of that trade, profession or calling.
(2) Prohibited Conduct. No person shall use or possess any cutting weapon upon the public streets or upon any public property at any time.
A violation of this ordinance is punishable by a fine of not less than $300 and not less than 90 days of confinement.
The above examples would arguably not survive the minimum rationality standard of review. Unfortunately, there is little evidence of close tailoring and the existence of a compelling objective to be achieved in some knife laws.
Several states have knife laws that originated in the 19th Century and were enacted when dueling was an issue. The Alabama State law prohibition regarding the concealed carry “about the person of any bowie knife,” which dates from 1852, is an example. What “compelling objective” remains, and how are bowie knives a close fit?
The New Mexico Supreme Court described that state’s knife law as a “quaint collection of nineteenth-century weapons” in the 2009 case State v Nick, 218 P.3d 868. The word “quaint” suggests that the restricted knives have long since ceased to be a problem.
Several states have blade length restrictions, yet there is a wide range as to legal limits. Massachusetts and Connecticut impose a one and ½ inch-blade length restriction for automatic knives. Non-automatic knives in Connecticut are limited to four-inch blades. Why the difference? A federal law, 18 U.S. Code § 930 (g) (2), applicable to federal property, defines a dangerous weapon as including a pocket knife with a blade length of two and ½ inches or longer. Some states, such as Delaware, Rhode Island, and Virginia, prescribe a three-inch limit for knives. In contrast, others, such as Colorado and Nebraska, set a limit at three and ½ inches. Yet many states, for example, Pennsylvania, New Hampshire, Ohio, Wisconsin, and South Carolina, have no blade length restrictions on open or concealed carry.
Most of the current state knife laws were enacted before the Heller and McDonald decisions. They were done so in an era when little if any, “tailoring” was involved in the legislative process. States simply selected an arbitrary dimension for blade length or enacted prohibitions on knives popularly viewed as having a weapon, as opposed to sporting or craft, uses. Proponents of such measures refer to them as “common sense” restrictions. When subjected to scrutiny, they appear to have been the result of magical thinking.
AKTI is dedicated to the elimination of improvident laws which hinder the use of man’s oldest tool. We seek to educate and inform so that where a compelling objective suggesting a restriction may appear, the issue can be approached with the degree of caution and restraint required by our Federal and state constitutions.
You can learn more about knife laws, check out the knife laws where you live, work, or travel, and support AKTI’s efforts to advocate for the knife community on our website at State Knife Laws.