This article appeared in Knife Magazine in July 2021.
Know Your Knife Laws – The Useful Sword Cane
By Daniel C. Lawson, Attorney and Knife Expert
The knife and the stick are among mankind’s oldest implements. Through millennia, these two elements have been combined to create more efficient tools such as spears, pikes, axes, and pruning hooks. In the 17th Century, a hybrid referred to as the sword-stick, cane-in-a-sword, or sword cane emerged. The distinguishing feature is that the blade is encased within the stick from which it may be withdrawn. This evolution was probably brought about by changing social conventions and fashion, along with the fact that carrying a sword can be awkward when entering a building, traveling in a coach, or merely going about daily life activities.
The cane sword afforded the utility of a walking stick. It offered a sword-like blade for the contingencies where it might be appropriate. We might say it was a better fit in a world that was becoming more metropolitan.
Cane sword laws in the U.S. developed in the early 19th Century. In 1822 the Kentucky Court of Appeals reversed a conviction for unlawful possession of a sword cane under an act of the legislature that provided:
any person in this commonwealth, who shall hereafter wear a pocket pistol, dirk, large knife, or sword in a cane, concealed as a weapon, unless when traveling on a journey, shall be fined in any sum not less than one hundred dollars.
The court in Bliss v Commonwealth, 2 Litt. 90, ruled that the act was an unconstitutional infringement on the right to bear arms.
In 1870 Tennessee made it unlawful to carry “either publicly or privately” a dirk, sword cane, Spanish stiletto, belt or pocket pistol.” The stated purpose was to “preserve peace and prevent homicide.” Arkansas enacted a restriction of the carry of any sword cane in 1875, among other things, that in a modified form is still in effect. In both states, the restriction was challenged on constitutional grounds and upheld. Sword cane legislation remains an issue in this urbane 21st Century. Montana removed a statutory restriction on sword canes in a 2017 amendment to M.C.A. 45-8-316 pertaining to concealed weapons. In 2016 the State of Oklahoma removed a sword cane prohibition from the “Unlawful Carry” statute, 21 Okl. St.Ann. § 1272. In April 2021, Ohio removed possession and carry restrictions to essentially all knives. If there is a legislative trend, it is in the direction of less restriction. Only a few states now forbid the possession or commerce of sword canes. California Penal Code § 20510 prohibits the manufacture, importation into the state, sale, or possession of a sword cane under penalty of confinement in a county jail for not more than one year. Sword canes are similarly prohibited in New York (§ 265.01) and Massachusetts (269 § 12). While there are sword cane-specific laws in some other states, those laws inform us that sword canes are generally lawful to carry. Mississippi has three separate sections dealing with sword canes. An enactment dating to 1880, now designated as § 97-39-11 captioned “Fighting in public with a deadly weapon,” provides:
If any person shall be guilty of fighting in any city, town, village, or other public place, and shall in such fight use any rifle, shotgun, sword, sword-cane, pistol, dirk, bowie-knife, dirk-knife, or any other deadly weapon, or if any person shall be second or aid in such fight, the person so offending shall be fined not less than three hundred dollars, and shall be imprisoned not less than three months; and if any person shall be killed in such fight, the person so killing the other may be prosecuted and convicted as in other cases of murder.
As evidenced by the words “any person shall be second,” this was an anti-dueling measure common to the era. It was held not to restrict the right of self-defense in Hunter v State, 62 Miss. 540 (1885).
Mississippi law, § 97-37-19, makes it unlawful to “brandish or wield in a threatening manner” any dirk or sword cane. Another statute, § 27-17-415, imposes a privilege tax of $100:
upon each person selling pistols, dirk knives, sword canes, brass or metallic knuckles, or other deadly weapons (excepting hunting knives, shot guns and rifles).
Where a statute expressly mentions an item, similar non-mentioned alternatives are not included. Lawyers and judges refer to this principle as expressio unius est exclusio alterius. Thus, in Mississippi, one may be a dealer in sword canes, brass knuckles, and other novelties. One may carry, but not brandish, a sword cane. Florida law, § 790.10, provides with respect to sword canes that it is unlawful to “exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense,” in the presence of one or more persons. The Nevada version, N.R.S. 202.320, uses substantially the same wording. New Hampshire law, § 159:3 prohibits the possession of sword canes by convicted felons.
The express mention of one item – excluding non-mentioned items in the same class – also applies to the enhanced cane or walking stick category. An Alabama law, § 13A-11-54, that can be traced back to 1876, imposes a penalty for “any person who carries a rifle or shotgun walking cane.” One may validly conclude that the Alabama legislature considered “weaponized” walking sticks and decided to restrict canes or sticks with a firearm feature, thereby excluding sword canes.
Cane sword law presents a threshold concealment issue. Some U.S. states restrict the carry of concealed weapons based on the notion that by requiring the same to be openly carried, those who might encounter the armed person are on notice. A cane or walking stick is typically obvious. Moreover, unenhanced walking sticks or canes are sometimes carried for possible weapon use. The iconic shillelagh associated with Ireland and brought to this country by many immigrants developed as a cudgel. In some U.S. jurisdictions, a handgun is not concealed if worn in a holster that is at least partially visible. California law, § 20200, provides that a knife carried in a sheath worn openly is deemed not concealed. The cane or walking stick serves much the same function as a sheath or holster, along with the additional function as an aid to mobility. The possession of a cane or stick, a yard or so in length, should be a sufficient warning that if the individual in possession thereof should become antagonized, he or she may strike with it. That it may also contain a sword blade should be surplusage.
The issue of concealment varies from state to state.1 A statute in Maine, 25 M.R.S.A. § 2001-A, provides that it is unlawful to: Wear under the person’s clothes or conceal about the person’s person a firearm, . . .dirk, stiletto or other dangerous or deadly weapon usually employed in the attack on or defense of a person. A reasonable interpretation of this Maine law – including what is intended by “the person’s person” – and with application to a sword cane is that it would prohibit clutching the item under one’s clothing or close to the body but not using it as a cane. An Oregon court in a case dealing with a weapon in an automobile, State v Crumal, 633 P.2d 1313 (1981), held: The fair import of the phrase “carries concealed about the person” is that the concealed weapon be carried in such a manner that it moves along with the person’s body, not just in reasonable proximity to the person or in some place where it would be deemed to be in the constructive possession of the person. This holding also suggests that the normal use of a cane or walking stick would not constitute concealment. This is logical. The law would not consider, for example, a briefcase or a handbag carried in a normal manner as concealed. Moreover, almost all states within the United States have a “white cane law” that requires motorists and others to notice red-tipped canes and react accordingly. It is unfortunate that among the few sword cane cases addressed by appeal-level courts, prejudice or other factors may have discouraged a thorough and dispassionate analysis.
A Pennsylvania law, 18 Pa.C.S.A. § 908, provides it is unlawful to simply possess certain “prohibited offensive weapons,” which by description include, among other items, bombs, grenades, machine guns, and sawed-off shotguns. The only listed knives or cutting instruments are those which have a blade capable of automatic deployment. One Rozell Walton was observed on foot in the City of Philadelphia with a sword cane and was charged under § 908 with possession of an “implement for the infliction of serious bodily injury which serves no common lawful purpose.” His defense was that he possessed the weapon solely as a “curio,” which is an affirmative defense to the possession of a non-explosive “offensive” weapon under § 908. He did not attempt to prove the item had a lawful purpose. His lawyer also evidently overlooked the expressio unius est exclusio alterius argument that by expressly mentioning automatic knives in the § 908 prohibition, non-mentioned cutting instruments, such as a fixed blade sword cane, were excluded. He was found guilty and pursued an appeal on the grounds that “common lawful purpose” was vague and that the state should have the burden to prove he did not deal with the sword cane solely as a curio. The court in Commonwealth v Walton, 380 A.2d 1278 (1977) affirmed the conviction in an opinion that stated with respect to the sword cane, “even imagination run rampant fails to suggest any common lawful purpose for it.” The same court, as seen in Commonwealth v Smith, 353 A.2d 39 (1978) had recognized a common lawful purpose for revolvers and knives:
Thus, if a weapon has a common lawful purpose, the possession of it in itself does not violate § 908. In Commonwealth v. McHarris, supra, this court addressed this question. There, the appellant possessed a .38 caliber revolver. The court held that a revolver is not a weapon that “serves no common lawful purpose,” and the appellant could not be convicted of violating § 908 of the Crimes Code. In explanation, the court cited the joint comment to §§ 5.06 and 5.07 of the Model Penal Code at p. 68, which states a revolver has lawful purposes:
“Other weapons, like sporting rifles, shotguns, and revolvers . . . have peaceful as well as lethal potentialities. Not only must we take account of the desires of sportsmen, farmers, and dealers in hunting equipment, we must also recognize that revolvers and knives are frequently carried for defensive purposes.” (Underlining for emphasis.)
There exist numerous lawful and appropriate uses for a sword cane. Many people would be more comforted by an enhanced walking stick when venturing into the outdoors or along walking trails. Canes help us avoid tripping hazards. There is also the therapeutic benefit to those of us in the “baby boom” generation who are experiencing the effects of degenerative disease or have undergone joint replacement surgery.
We suggest that where sound jurisprudential principles control (rather than “imagination run rampant”), the laws of a substantial majority of states within the U.S. allow sword canes to be carried in public. In a few states – Delaware, Georgia, and Missouri – a concealed weapons license may be required. The decision to carry a sword cane should consider state law issues regarding blade length, blade style, and concealment. Michigan law 750.227, for instance, is intolerant of daggers, stilettos, or double-edged, non-folding “stabbing instruments” of any length. We note that a purveyor of sword canes, Burger Custom Canes www.swordcane.com, offers an optional additional “false handle” without a blade for those locations where the enhanced version would not be welcome.
As with other laws, those pertaining to sword canes can vary substantially from state to state.
1Concerning Concealment, Knife Magazine, February 2020 and AKTI website.