Know Your Knife Laws – The Full Nelsen – United States v. Douglas Nelsen
By Daniel C. Lawson, Attorney and Knife Expert
In 1988 a federal court of appeals upheld a conviction of Douglas Nelsen by a U.S. District Court in Minnesota for selling “switchblades” through his “mail order” business Crowley Cutlery. The decision in U.S. v. Nelsen 859 F2d 1318 affirming the conviction under the Federal Switchblade Act (FSA) is an unfortunate example of constitutional jurisprudence. An anti-knife and anti-Second Amendment bias is discernible, if not obvious.
For instance, the court’s opinion gratuitously mentions, “Nelsen became interested in switchblade knives at an early age.” The same could be said of millions of us in the knife community. Having a boyhood interest in knives – yes, including automatic models – is not unlawful. Nelson’s early interest had absolutely no legal significance. The mention of his early interest seems intended to suggest an unhealthy fascination that must be “corrected.”
That decision also states, “In 1983 he became convinced that the law prohibiting such knives was unconstitutional” and that “he claims to find a fundamental right to keep and bear arms” in the Second Amendment to the U.S. Constitution. Nelsen was portrayed as an unhinged eccentric. Although Nelsen’s beliefs were widely shared, the opinion of the court treats Nelson’s argument as equivalent to fringe theory, if not flat-earth-believer absurd. The court stated:
Nelsen claims to find a fundamental right to keep and bear arms in that amendment, but this has not been the law for at least 100 years. In United States v. Cruikshank, 92 U.S. 542 (1876), the Supreme Court overturned criminal convictions based on interference with supposed second amendment rights. “The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution.”
The last two sentences in the above quote were taken from the United States v. Cruikshank decision. That obviously controversial case had been largely abrogated by 1988. The original reads:
The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution.” Neither is it, in any manner, dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that Congress shall not infringe it. This is one of the amendments that has no other effect than to restrict the powers of the national government. Cruikshank 92 U.S. at 553.
When read in context, it plainly states that the federal government may not infringe on the right. Douglas Nelsen’s beliefs about the Second Amendment were sound. The federal government arguably infringed on protected rights when it enacted the FSA. The Court of Appeals presented and relied upon a distortion of the Cruikshank case.
The egregious nature of the court’s misstatement cannot be fully appreciated without an understanding of the significance of the case of U.S. v. Cruikshank. It is not an obscure case about the Second Amendment from the 19th Century. It was always highly controversial and was largely abrogated and dis-credited before 1988. A study of U.S. Constitutional Law invariably includes a study of the case. An examination of the Cruikshank case is a necessary step in understanding how the U.S. Constitution and, in particular, the Bill of Rights applies to the states.
A panel of U.S. Court of Appeals judges, assisted by law clerks, could not have overlooked the misstatement. The most likely explanation is that the Court of Appeals felt that Douglas Nelsen and his beliefs about individual rights had to be discredited and suppressed. In affirming the conviction, it also upheld the sentence of one year in prison and a fine of $5,000.
U.S. v. Nelsen was not the only court case involving Douglas Nelsen and the federal restrictions on commerce in switchblade knives. The Crowley Cutlery Company, a corporate entity that Nelson had formed, filed an action seeking a declaration as to the constitutional infirmity of the FSA. The U.S. District Court in Illinois, where he filed the case, declared the lawsuit frivolous and dismissed the proceeding. This disposition was upheld on appeal in Crowley Cutlery Company v. United States 849 F.2d 273 (1988).
It has been 35 years since Nelsen’s switchblade battle, and now those particular knives and the Second Amendment are back in a federal court. On February 10, two Hawaii citizens filed a lawsuit in the Federal District Court for Hawaii seeking a declaration that the state law § 134-52(a) captioned “Switchblade knives; prohibition; penalty” is unconstitutional facially and as applied.
Section 134-52 prohibits the commerce, possession, and public carry of “any knife having a blade which opens automatically (1) by hand pressure applied to a button or other device in the handle of the knife, or (2) by operation of inertia, gravity, or both.” This law was enacted in 1959 and uses a definition similar to that found in the FSA.
The Second Amendment has not changed since Mr. Nelsen’s 1988 litigation. The import of that Amendment has been made quite clear. It appears that Douglas Nelsen’s beliefs as to the Second Amendment were correct. An outcome different from that Nelsen experienced should occur concerning the case in Hawaii.
In 2008 – 20 years after Nelsen’s conviction was affirmed – the U.S. Supreme Court decision in District of Columbia v. Heller, 554 U.S. 570 held that the Second Amendment was valid. The court stated that the Amendment is a guarantee – not a grant of:
the individual right to possess and carry weapons in case of confrontation. The historical background of the Second Amendment strongly confirms this meaning. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” (554 U.S. at 592).
The 2010 decision of the U.S. Supreme Court in McDonald v. City of Chicago 561 U.S.742 held that the Second Amendment protects a fundamental right and, as such, it applies to state legislation infringing upon the right:
We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States. (561 U.S. at 750)
Accordingly, the Hawaii state statute in question must conform with the Second Amendment. The state / federal dichotomy in the U.S. v. Cruikshank case is not an issue.
The District of Columbia v. Heller opinion addressed the scope of what “arms” are protected. A definition of arms mentioned in Heller and sourced to an 18th dictionary provided that the term included “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” The analysis is focused not on what is included but rather on the smaller class of weapons that were excluded. Weapons typically possessed by law-abiding citizens for lawful purposes are protected.
The case of New York State Rifle & Pistol Ass’n, Inc. v. Bruen, U.S. 142, decided by the U.S. Supreme Court in 2022, clarified two points that some anti-Second Amendment skeptics stubbornly relied upon.
Firstly, the Bruen case clearly held that the right to keep and bear arms included being armed and ready for offensive or defensive action in a conflict with another person and that it extended beyond the home. The public carry of protected weapons or arms may not be prohibited.
Secondly, Bruen held that the laws infringing on the Second Amendment are presumably invalid, and the state overcame a strict standard to justify the restriction. This is the polar opposite of the standard of review applied in the case against Douglas Nelsen.
The litigation commenced in the U.S. District Court for Hawaii in February of this year will proceed in a legal/judicial environment markedly more favorable to the rights of individuals, which is attributable to the U.S. Supreme Court cases of Heller, McDonald, and Bruen mentioned above.
Legislative bodies in 21 states have considered “switchblade knife” restrictions impulsively enacted and voted to repeal such laws. Thousands of state congress members and senators representing millions of citizens have more than validated Douglas Nelsen’s interest in knives.
Millions of people in this country typically carry knives for quite common and lawful purposes. The American Knife and Tool Institute (AKTI) suggests no “bad” or “criminal” knives exist. We also suggest that fundamental governing principles should not be set aside, as occurred in the U.S. v. Nelsen, only because the end justifies the means.
One size or style does not fit all. What is likely man’s oldest tool has developed into a myriad of variations. AKTI suggests that people should be free to select and carry a knife “most likely to affect their safety and happiness” and within the broad Constitutional parameters established by Heller and Bruen.
The American Knife & Tool Institute is celebrating 25 years of Keeping Knives in American Lives, advocating for reasonable and responsible knife laws, protecting the knife industry and knife owners, and encouraging the next generation of knife users. Learn more about its history and successes.