This article appeared in Knife Magazine in October 2020
Know Your Knife Laws – A Gravity Knife by Any Other Name
By Daniel C. Lawson, Attorney and Knife Expert
The Virginia legislature passed a law in 1849 that made it unlawful to “habitually carry about hid from common observation any pistol, dirk, bowie knife or weapon of like kind.” The use of the adverb “habitually” is consistent with the concealed carry anti-dueling measures of that era. A few minor changes have been made in the years since. The current version, 18.2-308, now provides in pertinent part:
If any person carries about his person, hidden from common observation, . . . (ii) any dirk, bowie knife, switchblade knife, ballistic knife, machete . . . razor, or (v) any weapon of like kind as those enumerated in this subsection, he is guilty of a Class 1 misdemeanor.
A few more recent items, such as automatic and ballistic knives, have been added, and the “habitually” qualifier has been removed. In the 2009 case of McMillan v. Commonwealth 686 S.E.2d 525 – involving what was said to be a scuba diving knife – a Virginia Court of Appeals judge wrote about the difficulties with the statute, which by then was 160 years old:
Apparently, at that time, a mere thirteen years after the death of the designer of one of the knives in question, Colonel James Bowie, Virginians did not have much trouble differentiating this weapon, or weapons like it, from more utilitarian knives such as hunting knives.
By the end of the twentieth century, however, that recognition had apparently faded. In 1998 our Supreme Court was first called upon to determine which bladed weapons fell within the scope of the statute. In Wood v. Henry County Public Schools . . . the Court concluded that a pocketknife was “neither a dirk, bowie knife … nor a weapon of like kind.” . . . Since that date, our Supreme Court and this Court have considered the applicability of §18.2–308(A) to various types of knives on no fewer than ten separate occasions, and the only consistency in the conclusions reached has been inconsistency.
That same year, the Virginia Supreme Court in Thompson v. Commonwealth 673 S.E.2d 469 (2009) turned to “Webster’s Third New International Dictionary” for relief from the longstanding uncertainty problem during which some Virginia courts defined “dirk” as any knife with two sharp edges and a point, while a “bowie” was a knife with one sharp edge and a point per Richards v. Commonwealth, 443 S.E. 2d 177 (1994).
The dictionary definitions adopted by the court were an improvement over the extremely indefinite – sharp edge(s) and a point – standard mentioned in Richards v. Commonwealth.
The adopted definition for “dirk” is “a long, straight-bladed dagger or a short sword.” An online search reveals an inconsistent alternative definition of “a short dagger of a kind formerly carried by Scottish Highlanders.” Which is it? Long or short? The adopted “Webster’s” definition of “switchblade” is “a pocketknife having the blade spring-operated so that pressure on a release catch causes it to fly open.” Axe heads occasionally “fly off the handle.” With the rare exception of “ballistic knives,” knife blades do not “fly” unless thrown by the user. Does the use of the word “fly” limit it to “ballistic knives”?
Another English language dictionary defines the term “switchblade” as “a knife with a blade hidden inside its handle that springs out when a button is pressed.” While the blade of out-the-front knives is often hidden inside the handle when closed, the blades of pivoting or folding knives are almost always discernible when closed. Would the “hidden inside its handle” element eliminate automatic knives with folding blades?
The U.S. Constitution requires due process in the formulation and application of laws. This requires adherence to established principles and that all individuals be treated fairly and without discrimination. The U.S. Supreme Court opinion in Grayned v City of Rockford, 408 U.S. 104 (1972) is a case where these principles are succinctly described:
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to police officers, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. (Citations in footnotes omitted).
We suggest that most people who carry knives routinely use them as tools rather than weapons. Knife laws treat cutting instruments as weapons. The U.S Constitution preserves the fundamental “individual right to possess and carry weapons in case of confrontation, D. C. v. Heller, 554 U.S. 570 (2008). This right is preserved for individuals under state and federal law, McDonald v. City of Chicago, 561 U.S. 742 (2010).
Where fundamental rights are at issue, clarity is especially important to avoid a negative or “chilling” effect in the exercise of those rights. “Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked”, Grayned v City of Rockford. A higher level of scrutiny applies to restrictions that affect the right to carry arms. New York State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242 (2015).
In the Virginia McMillan case mentioned above, the Judge observed that the ability of Virginians to differentiate bowie knives from “utilitarian knives such as hunting knives” had faded. While this observation incorrectly assumes that the distinction could have been made in 1849, it concedes that it is no longer possible.1 This is not unique to bowie knives or Virginians. Moreover, the dictionary definition for “bowie knife” adopted by the Virginia Supreme Court – “a large hunting knife adapted [especially] for knife-fighting” with a “10- to 15-inch-long blade” – provides little criteria for differentiation apart for the aspect of blade length.
We suggest that some knife terms, such as “bowie” and “dirk,” are not susceptible to a definition that enables persons of ordinary intelligence to determine the point on the knife spectrum where hunting knives end and bowie knives begin. If there are identifiable, tangible, and non-arbitrary aspects common to such knives which enable one to distinguish which knives should be restricted, then those aspects should be incorporated into a statute. We should not be forced to “steer far wider of the unlawful zone” because of legislative uncertainty.
Uncertain or vague standards improperly allow discriminatory or arbitrary enforcement. New York State law provides a function-based definition for “gravity knife.” Police and prosecutors implemented a “wrist flick” test:
There has long been disagreement in the state of New York over how to define and when to prosecute an individual for possession of a gravity knife. Under the Penal Law, possession of a gravity knife is illegal per se, but a gravity knife is defined by function and not design.
A knife is not illegal because it is designed to open by the force of gravity and lock into place; the knife is illegal when it actually does open by the force of gravity and locks into place by means of a procedure used by the District Attorney’s office to identify a gravity knife, called the “wrist flick test.”
Because the wrist flick test is a functional one, it is difficult, if not impossible, for a person who wishes to possess a folding knife to determine whether the knife is illegal. Cracco v. Vance, 376 F.Supp.3d 304 (2019).
The wrist flick test was not part of the statutory definition. Prosecutors usurped legislative authority. A Federal District Court in Cracco v. Vance appropriately held the gravity knife restriction void for vagueness as applied.
Prosecutors sometimes behave like the small boy who acquires a hammer and proceeds to treat everything like a nail. Where a statute prohibits dirks, for instance, every knife becomes a dirk.
The American Knife & Tool Institute (AKTI) has long advocated for explicit standards in the application of restrictions based on undefined terms. We have promulgated suggested definitions for terms such as “gravity knife” or “dagger,” which frequently occur undefined in state statutes. These definitions have been developed with input from the knife industry, including people with experience in the design and making of knives. This perspective affords an authoritative alternative to general-purpose dictionaries and other such sources. Our experience has been that these definitions have been found valuable and persuasive in various legal matters and have been adopted by courts. These definitions are available on the AKTI.org website at AKTI Approved Knife Definitions.
1 (What constituted a bowie knife was disputed contemporaneously with early legislation.) Haynes v State, 24 Tenn. 120 (1844)