This article appeared in Knife Magazine in October 2026
Know Your Knife Laws – Automatic Standing
By Anthony Sculimbrene, Attorney and Knife Expert
Laws restricting knife owners’ Second Amendment rights are subject to challenge on two fronts: legislative changes and court cases. Over the years, the court cases have had middling success. In looking through all of those cases, there is a pretty clear pattern–civil cases lose, and criminal cases win. One of the biggest victories in court was Commonwealth v. Canjura. Not only did it kill Second Amendment restrictions in a state unlikely to get rid of them legislatively, but it provided a template for subsequent challenges (like the one pending in Minnesota I covered last month). Canjura was a criminal case.
There are a multitude of reasons why criminal cases are better vehicles for challenging anti-Second Amendment laws. First, unlike in a civil case, the burden of proof (who must prove their case) is on the State. Second, the standard of proof (the amount of proof required) is higher (beyond a reasonable doubt vs. preponderance of the evidence). Third, judges care more when liberty is at stake, as it is in a criminal case. It is one thing to incarcerate someone. It is another thing entirely to tell a bunch of knife collectors they can’t have that one piece they really want. Alone, these would be good enough reasons to focus on criminal cases, but one other thing really matters: standing.
I have looked at standing before, but as a refresher, standing is a procedural requirement for a case to be heard in court. Standing basically means that the litigants have something at stake. In a handful of civil cases, including the most recent high-profile case, Knife Rights v. Garland, a very 2A-favorable court dismissed the civil case because it believed the litigants lacked standing. This is another reason why criminal cases make better vehicles to attack anti-Second Amendment knife laws. When someone is charged with possessing an automatic knife, they almost always have standing. And, in at least four states (New Hampshire, the state I practice in, Pennsylvania, Washington, and New Jersey), defendants automatically have standing in cases where the crime involves possession of contraband –the exact kind of cases that involve knives.
As late as 1980, ALL states had automatic standing in possession offenses. In United States v. Salvucci, the U.S. Supreme Court, as part of the then-expanding War on Drugs (yet another example of problems associated with the War on Drugs perpetually stealing normal citizens’ rights as the baby is being thrown out with the metaphorical bathwater), invalidated automatic standing, holding that individuals in possession offenses must prove an expectation of privacy to have standing to challenge a search.
All of this is more than mere legal history. Of the four states that still honor automatic standing, one –Washington state– has knife ban laws on the books. This means it should be ripe for targeting when litigating knife laws. Here is why. When knife lawsuits have been brought in civil court, they face an uphill battle, and the first front in that battle is always standing. Switching to litigating knife laws in criminal cases avoids the standing fight. Doing so in Washington State GUARANTEES standing because it is one of the last automatic-standing states in the U.S. Once the fight starts, because it is a criminal case, all of the strategic advantages mentioned above play in favor of the knife owner and are drawn against the anti-knife law.
But there is more. As we have seen in other states, including Minnesota, we now have a game plan for criminal cases challenging knife laws – State v. Canjura shows us how to apply the Bruen standard in states where there are knife ban laws. This means that thanks to a quirk in the law due to unusual legal history, Washington State appears to be the very best target for those trying to fight unconstitutional knife laws. And then there is the realpolitik issue–Washington’s left-leaning politics make it highly unlikely that a legislative fix, which has worked in many states, will be successful. There are, of course, efforts to undo that problem on the legislative side, but they have been stalled for years. Like Massachusetts, Washington is one of a handful of states where a court challenge might be better than a legislative fix.
Heller was the result of incredible planning and logistics on the part of the NRA’s legal division. The story behind the case is almost as interesting as the case itself. It represents a perfect example of Second Amendment advocates using tactics developed elsewhere to really screen and select the very best place and party to use in issue litigation. Washington State is the place where knife advocates should litigate or lend support to litigation in a criminal case. It, of course, makes for odd bedfellows–criminal defense is typically a progressive issue–but it also proves that worthwhile constitutional rights should be the province of one political party or leaning.
Commonwealth v Canjura
Knife Rights v Garland
A Knife Owner’s Primer on Bruen