This article appeared in Knife Magazine, February 2022.
Know Your Knife Laws – The Uncommon and Extraordinary Pocket Knife
By Daniel C. Lawson, Attorney and Knife Expert
If you are among the millions of people who routinely carry a pocket knife, you have probably been asked why you do so. Occasionally, the officious questioner will suggest that you violate some law because you have a concealed weapon. That individual typically declares that one does not need to carry a knife.
A useful and polite response to such a question is to point out that Abraham Lincoln carried a pocket knife. He and his wife were viewing a dramatic performance at a local theater. Today, we might call it a “date night.” The contents of his pocket included eyeglasses, a handkerchief, a five-dollar bill, and a slip-joint knife with ivory scales and silver bolsters.
Those who disfavor pocket knives sometimes suggest that “times have changed” and have obviated the need for pocket knives and that quaint practices of the 19th century are no longer relevant.
Apart from the ivory scales, an exact replica of Lincoln’s knife would still be legal in the District of Columbia. Moreover, the proliferation of manufactured or processed goods – along with the resulting packaging – has increased the utility of a convenient pocket knife.
While pocket knives are useful everyday tools and should not be viewed as weapons, restrictions on the carry of such knives are common. These restrictions are typically based on the issue of concealment, blade length, overall length, or features such as automatic opening or a locking blade.
The residents of 26 states are fortunate to live in a jurisdiction where no restrictions on the carry of pocket knives obtain.1 People at least 21 years old in those states listed may carry any type of pocket knife without regard to whether it is concealed, how it may be opened, or blade length. Those persons in the other half of the country are beset with various restrictions, some of which are quite dubious.
Pocket knives are designed and intended to be carried in a concealed manner – typically in a pocket or handbag. Open carry of pocket knives – excluding the relatively recent development of pocket clip carry – is challenging and the exception rather than the norm.
Concealed carry prohibitions originated as an attempt to curb the practice of dueling. Early anti-dueling measures included death sentences for the principals as well as the second parties. Still, they were less than effective due to “juror nullification” as matters of honor were part of the social fabric, most notably in the southern states. The prevailing party charged with a crime would assert that his honor had been attacked and that he needed to rightly defend himself. Juror nullification also encouraged the “on the spot” alternative. Persons insulted or offended by another would avoid the formalities of a duel, which involved conveying a written challenge, appointments of seconds, and negotiations as to time place, and simply attack the antagonist. This spur-of-the-moment alternative tended to favor those who deceptively presented themselves as unarmed. At a time when suitable weapons for dueling – pistols and large knives – were commonly carried openly, concealed carry became incentivized. Thus, this led to concealed carry restrictions which were upheld as reasonable restrictions that applied only to the way knives were carried and not as prohibitions on the bearing of arms.
This approach to restriction has been immensely popular and survives yet when dueling is a primarily forgotten practice. We have little reason to assess whether someone we encounter in our daily lives will draw a weapon if offended. These concealed restrictions are often used effectively to prohibit by requiring an impractical manner of carry.
The case of State v Delgado, 692 P2d. 610, decided by the Oregon Supreme Court in 1984, is an obvious example. The Delgado case held that the Oregon state law prohibiting the mere possession of a “switchblade” (automatic) knife was inconsistent with the Oregon State Constitution that provides “The people shall have the right to bear arms for the defense of themselves . . .” The Oregon legislature quickly amended the concealed carry statute to include “any knife having a blade that projects or swings into position by force of a spring or by centrifugal force and commonly known as a switchblade knife.” Prior to the amendment, it was unlawful to conceal carry dirks, daggers, and ice picks.
The test or standard on the issue of concealment in Oregon is based on decisional law from the case of Oregon v Turner, 193 P3d. 697 (2008):
a person violates 166.240 by carrying on his person a weapon that is either not readily identifiable as a weapon or by attempting to obscure the fact that he is carrying a weapon on his person.
Arguably placing a fixed blade knife such as a dagger into one’s pocket might be interpreted as an attempt to “obscure,” which is the second alternative of the test. That same argument does not apply to a pocket knife having automatic functionality. The first alternative is confusing because it can be reasonably read to refer to carrying a visible item, a weapon, but not recognizable as such. On the day the concealed “switchblade” amendment became effective, did it become unlawful to carry one in a pocket? It appears the legislature desired that very outcome.
Various states created exceptions or exclusions for “ordinary” or “common” pocketknives as carry restrictions were enacted. Florida law generally provides that concealed weapons may not be carried by unlicensed persons and defines “weapon” as:
any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.
“Common pocketknife” is not defined statutorily. The Florida Supreme Court adopted a decisional law definition in the case of L.B. v State of Florida, 700 So2d 370, (1997):
A type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one’s pocket. We believe that in the vast majority of cases, it will be evident to citizens and fact-finders whether one’s pocketknife is a ‘common’ pocketknife under any intended definition of that term.
This is a simple definition that is focused on what types are frequently carried. This could be established by empirical evidence, if necessary.
For instance, it is unlawful in New Mexico to conceal carry “deadly weapons” statutorily defined as:
“deadly weapon” means any firearm, whether loaded or unloaded; or any weapon which is capable of producing death or great bodily harm, including but not restricted to any types of daggers, brass knuckles, switchblade knives, bowie knives, poniards, butcher knives, dirk knives and all such weapons with which dangerous cuts can be given, or with which dangerous thrusts can be inflicted, including swordcanes, and any kind of sharp pointed canes, also slingshots, slung shots, bludgeons; or any other weapons with which dangerous wounds can be inflicted.
The definition led to a prosecution and conviction for possession of a pocket knife. On appeal to the State Supreme Court in the case of State v Nick, 218 P.3d 868 (2009), a decisional law pocket knife exception:
The striking characteristic of all the inherently dangerous items identified by name in the statute is that they are generally carried on one’s person for their utility as offensive or defensive weapons. In contrast, no definition of ‘pocketknife’ we have found refers to it as a ‘weapon’ or refers to it having a purpose of use against other human beings.
A North Carolina statute enacted in 1879 prohibited the concealed carry of any bowie knife, dirk, or dagger, or other deadly weapon of like kind. Given the well-recognized principles of statutory interpretation, this statute would not apply to pocket knives. Notwithstanding, the legislature of North Carolina later amended the statute – which is now § 14-269 – to include an “ordinary pocket knife” exception and definition.
Several problems are presented by creating an exception or “carve-out” for items not originally covered. The exception/definition is set forth in § 14-269 sub-part (d) and reads:
This section does not apply to an ordinary pocket knife carried in a closed position. As used in this section, “ordinary pocket knife” means a small knife, designed for carrying in a pocket or purse, that has its cutting edge and point entirely enclosed by its handle, and that may not be opened by a throwing, explosive, or spring action.
The words “ordinary pocket knife” are not otherwise “used in this section.” Does the exception have the legal effect of making pocket knives that do not fit within the definition into bowie knives, dirks, daggers, and other deadly weapons of like kind? Does the exception create a legal restriction? The answer to these questions requires interpretation. Uncertainties occurring in laws that impose criminal penalties – as does § 14-269 – are to be strictly construed. This means a criminal statute may not be enlarged by implication. A prohibition as to non-ordinary pocket knives is not expressed or written. It can only be implied from the exemption. Moreover, under the well-known rule of lenity, “there can be no constructive offenses and before a man can be punished his case must be plainly and unmistakably within the statute.” Withers v Commonwealth of Virginia, 65 S.E. 16 (1909).
Assuming the definition does create a legal restriction, there is also the complicating uncertainty as to what the meaning of “may not be opened by a throwing, explosive, or spring action.”
We are neither aware of any pocket knives which feature a blade opened by the action of explosive material, nor do we understand what the legislature intended. Such a knife would, indeed, be extraordinary.
North Carolina law defines a “switchblade knife” at § 14-269.2: “[a] knife containing a blade that opens automatically by the release of a spring or a similar contrivance.” How does one reconcile this with opened by “spring action” in the exception/definition?
Enforcement of the infamous New York “gravity knife” statute was found to be unconstitutional because it involved a “could be opened by a wrist-flick,” as opposed to “designed to be opened by a wrist-flick.” Accordingly, the standard would differ among individuals.
The American Knife and Tool Institute agrees with the precise point recognized by the New Mexico Supreme Court in the Nick case. Pocket knives are not intended as weapons and should be excluded from carry restrictions. We further suggest that the blades of pocket knives that open automatically are generally no different from the blades of manual pocket knives. Automatic knives are no more capable of inflicting “dangerous cuts” or “dangerous thrusts” than is a manually-opened blade.
AKTI is actively working to decriminalize the very common versions of man’s oldest tool. You can follow our legislative activities and sign up to receive our emailed news and updates. Be sure to check out the knife laws in the state where you live, work, and travel and more Know Your Knife Laws articles.
1AL, AK, AZ, AR, FL, GA, ID, IN, KS, KY, ME, MI, MT, NH, NV, OH, OK, SC, SD, TN, TX, UT, VT, WI, WV, and WY. (A knife with a blade longer than five and ½ inches is subject to location-based restrictions in Texas. This dimension is beyond the typical blade length for pocket knives.)