This article appeared in Knife Magazine in November 2023.
Know Your Knife Laws – Teter v Lopez
By Anthony Sculimbrene, Attorney and Knife Expert
The follow-on effects for Bruen continue, and while some high-profile cases are getting a lot of media attention, other cases are actually doing a lot of legal work in shaping how Bruen actually works. You may have read or heard about US v. Rahimi, which is a case challenging the constitutionality of 18 USC 922(g)(8), a federal law banning perpetrators of domestic violence from owning a firearm. Argued on November 7, 2023, the Supreme Court’s questions at oral argument indicate that they may agree with the federal government that domestic violence perpetrators shouldn’t have guns, but their order likely won’t come until 2024. While this case is grabbing headlines, another set of cases is doing more to shape Bruen. These cases focus on 18 USC 922(g)(1). This provision bans people with prior criminal convictions from owning firearms. While the federal law focuses only on guns, many states have equivalent laws that bar people with criminal convictions from owning both guns and knives. For example, in the state where I practice, New Hampshire, RSA 159:3 bars people with felony convictions from owning a gun as well as a “stiletto, sword cane, switchblade knife…dagger, dirk-knife…” As a result, how these cases play out has real significance for knife owners.
The issue in contention comes from a passage in Heller regarding the scope of Second Amendment protections. Heller and Bruen do not make clear whether the phrase “the people,” as referenced by the Second Amendment, include only “law abiding citizens.” That is, if you break the law, can the government restrict your access to firearms and still conform with the rules articulated in Bruen? This question is one that has much broader implications than the one in Rahimi. The number of people with criminal, minor, or non-violent convictions is vast. Should someone who got a felony drug possession conviction when they were 19 be barred from owning a hunting knife when they are 70 if, during that intervening period, they beat their drug habit, the drug has been decriminalized, they remained arrest-free, and grew up to become a contributing member of society?
Smart people on federal benches fundamentally disagree. In US v. Prince, for example, the Court held that “922(g)(1) imposes a far greater burden on the right to keep and bear arms than the historical categorical exclusions from the people’s Second Amendment right.” In Prince, the defendant’s prior felony conviction was not disclosed by the Court. Instead, the Court merely noted that prior felony convictions. Prince seems to, then, stand for a rule that prohibits laws barring felons from owning guns regardless of the underlying felony offense. Another case presaged Prince, United States v. Bullock, from the Federal Court’s Southern Mississippi district. That case engaged in the most thoroughgoing analysis of Bruen and 922(g)(1) on record. That Court, like Prince’s Court, was unconcerned with the underlying felony and also dismissed the felon in possession case. Bullock is also interesting because it notes that Bruen’s jurisprudence doesn’t apply to other constitutional rights, AND it also warns of the folly of grounding a constitutional right on the doctrine of Originalism.
But other courts have not been so convinced.
For example, in United States v. Fulcar, the federal district in Massachusetts rejected a challenge identical to that in Bullock and Prince. In Fulcar, the underlying felonies were unquestionably serious (assault and battery with a dangerous weapon). Additionally, in Fulcar, the 922(g) charge was bundled with drug dealing charges. The Fulcar court, however, didn’t worry so much about that. Instead, they claimed that the government had provided sufficient historical analogies to show that a ban on possessing weapons targeting people with criminal records was permissible. When it ran into Bullock, the Fulcar court ducked with the only excuse available to them: “These cases [including Bullock] are not binding upon this Court…” This is, of course, true–only a Supreme Court opinion can bind ALL federal and state courts. But there was no wrestling with issues raised in Prince and Bullock.
Like the Rahimi case, this line of cases demonstrates a split in authority among courts. It will eventually have to be resolved by the US Supreme Court. Perhaps the Rahimi case will cast a broad net and resolve both 922(g)(8) and 922(g)(1) issues. Or perhaps these cases will get their own day in Court. Until then, we will keep watching as courts, prosecutors, and law-abiding citizens grapple with Bruen.