The Second Amendment and The Butterfly Knife and Pocket-Knives

When most people think of the Second Amendment, they probably think of firearms and gun control laws. This is not surprising. Gun control efforts have been a hot button political issue for decades, and the Second Amendment’s scope is one of the many issues that comes up when gun control laws are debated. Further, the key Second Amendment cases deal with gun control laws, which has also fixed the Second Amendment’s connection to firearms in the mind of the public. The Second Amendment, however, protects much more than firearms.

Starting with its text, the Second Amendment protects the right to “keep and bear arms.” The word “arms” is not limited to firearms. The Supreme Court in District of Columbia v. Heller held that the word “arms” in the Second Amendment extends to “all instruments that constitute bearable arms, even those not in existence at the time of the founding.” The drafters of the Second Amendment could have easily limited the language of the Second Amendment to just firearms but chose to use the broader concept of “arms.” This does not mean that every weapon is protected by the Second Amendment.

The Supreme Court has held that the Second Amendment protects arms that are in “common use” and that are not “dangerous and unusual weapons.” The Supreme Court, however, has not clearly defined the “common use” limitation. In its first major Second Amendment case (District of Columbia v. Heller), the Supreme Court used its “common use” limitation to exclude from the Second Amendment’s scope various weapons used by the military that are not available to the public. This includes a wide range of machine guns and explosives that are common in the military but are not used by civilians. Not every weapon used by the military, however, is excluded from the scope of the Second Amendment. Many types of weapons used by the military are also used by civilians. For example, the military uses handguns that are commonly used by civilians, and it is well established that handguns are in common use.

Further, some weapons that are not used by the military, but are available to civilians, will nonetheless fall outside the scope of the Second Amendment. Unfortunately, the courts have not developed clear tests that explain what “common use” means for purposes of the Second Amendment. For example, does “common use” focus more on historical data or more on current ownership information? It is possible that a weapon in common use one hundred years ago will not be considered in “common use” today. Further, how long of a period of time is needed to show “common use”? This also raises the problem of how courts should deal with the warping of what weapons are in “common use” by unconstitutional laws that made it unlawful for individuals to own various weapons.

The Supreme Court has also stated that the Second Amendment does not protect “dangerous and unusual weapons.” It would seem that “unusual weapons” are also weapons that are not in “common use,” which would mean the “common use” limitation and the “dangerous and unusual weapons” limitation essentially mean the same thing or that the “unusual weapon” limitation is just a subset of the common use limitation. While these two exceptions to the Second Amendment will overlap to some extent, they do not necessarily overlap completely. For example, a nail gun is a popular tool, but can also be used as a weapon. It is possible that nail guns could pass the “common use” test but fail the “dangerous and unusual” test. This does not mean that nail guns will soon be outlawed because they don’t have Second Amendment protection. It means that states can regulate or prohibit the use of nail guns as a weapon, or significantly limit who can purchase nail guns.

While certain limitations exist as to the types of weapons protected by the Second Amendment, the Second Amendment should provide protection to many different types of knives. Pocket-knives, owned by millions of Americans as a self-defense weapon, are used in certain types of martial arts, and as tools. Further, pocket-knives were owned and used by Americans from our earliest history to the present. It is almost certainly true that many more people routinely carry some type of pocketknife than a firearm. Pocket-knives are in “common use,” and it is inconceivable that they are “dangerous and unusual” weapons.

In Teter v. Lopez, the Ninth Circuit Court of Appeals held that a Hawaii law prohibiting the possession of butterfly knives was unconstitutional. A typical pocketknife has a single piece handle in which the cutting edge of the blade fits when the knife is closed. A butterfly knife is a pocketknife in which the handle has two parts. When the butterfly knife is closed, the blade is completely enclosed by the two-part handle. A regular pocketknife and a butterfly knife can both be opened with one hand, although the movement needed to open a butterfly knife is more complicated.

In 1993, Hawaii made it unlawful to possess a butterfly knife. Hawaii argued that butterfly knives are “associated with criminals” and are somehow uniquely dangerous. The Ninth Circuit rejected this argument as being unsupported by any evidence, and pointed out that almost any weapon is “associated with criminals to some extent.” The Court also rejected the claim that butterfly knives were in any way uniquely dangerous. Hawaii did not submit evidence showing that butterfly knives were uniquely dangerous, and the Court stated that the “butterfly knife is simply a pocketknife with an extra rotating handle.” Indeed, the butterfly knife has existed for over one thousand years, and is “an integral part of the [F]ilipino martial art called Escrima.” Finally, the Ninth Circuit stated that Hawaii had not carried its burden of proving that the butterfly knife was not in common use. The court did not have to address possible differences between the “common use” and “dangerous and unusual” tests.

The Ninth Circuit’s conclusion that the butterfly knife is an “arm” for purposes of the Second Amendment was only one part of the analysis required by the Second Amendment. Given that butterfly knives are protected by the Second Amendment, Hawaii had the burden of proving that the prohibition of butterfly knives is consistent with the laws regulating arms at the time the Second Amendment and Fourteenth Amendment were enacted. Hawaii did not have to identify a “historical twin” for the challenged law, but it did have to show “analogous regulations that were enacted close in time to the Second Amendment’s adoption in 1791 or the Fourteenth Amendment’s adoption in 1868” supporting its ban of butterfly knives.

The Ninth Circuit in Teter pointed out that under the “historical-analogue inquiry, we cannot ‘uphold every modern law that remotely resembles a historical analogue.’” The court further stated that Hawaii would have to show that its ban on butterfly knives imposed “a comparable burden on the right of armed self-defense” and that the “burden is comparatively justified.” For example, laws regulating how black gunpowder was stored in a house located within a city were designed to prevent fires and would not support a law banning the possession of modern firearms in the home. The burdens are not “comparatively justified,” because the storage laws did not even ban the possession of firearms. Further, modern firearms do not use black gunpowder and do not pose the type of fire risk associated with black gunpowder.

Moving to the issue of “comparable burden,” a law that prevents the concealed carry of a knife, for example, does not impose a “comparable burden” to a law that prohibits the possession of such a knife in your home. Carry limitations have limited scope and do not strip individuals of the ability to protect themselves in their homes. Further, many historic carry limitations only applied to the concealed carry of firearms and certain knives, but did not prohibit the open carry of such weapons. States cannot use carry laws that presumed the lawful possession of the relevant weapon to justify the complete prohibition of that weapon.

Hawaii cited a number of state laws from the 1800s that it claimed were analogous to its total ban on possessing butterfly knives. The problem with Hawaii’s argument was that almost all the laws it cited did not prohibit the possession of pocket knives or even fixed-blade knives. The laws Hawaii cited prohibited the concealed carrying of certain knives and other weapons. Bans on the concealed carrying of certain knives in public address a different problem than merely possessing a knife in your home. Second, many of those statutes either did not mention pocketknives or they expressly excluded pocketknives from their carry bans. Instead of showing a legislative tradition that supported the prohibition of pocketknives, the statutes Hawaii relied on showed a tradition of allowing the ownership and carrying of pocketknives.

Hawaii did cite an ambiguous 1837 Georgia law that could conceivably be read as banning the possession of “bowie, or any other kind of knives.” There are a number of problems with Hawaii’s reliance on this Georgia law. First, it is hard to believe that the State of Georgia made the possession of any type of knife in one’s home unlawful. Such an interpretation would have banned basic cutlery that every home needed in order to prepare and cut food. Second, the law provided an exception for the open carrying of knives, which strongly suggests the law was designed to prohibit the concealed carrying of knives. This interpretation is also consistent with other state laws during this time period that did not prohibit the possession or open carry of knives. The Georgia law is a much better example of poor drafting than a policy banning the possession of knives.

Finally, and more importantly, even if the Georgia law did exactly what Hawaii claimed it did, one law from one state enacted over 40 years after the Second Amendment was ratified does not create a legislative tradition. The Ninth Circuit was correct when it stated: “one solitary statute is not enough to demonstrate a tradition of an arms regulation.”

The revival of the Second Amendment as a meaningful constitutional right by the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, is going to impact much more than gun control laws. This does not mean that individuals will be able to carry any type of weapon they want or in any manner they want, nor will they have the right to carry a firearm anywhere they want. It does mean that courts are going to have to grapple with laws that prohibit the possession and carrying of various types of knives, mace, batons and other weapons. It also means that some of the modern laws banning the ownership of certain weapons or that entirely prohibit the carrying of certain weapons will face serious constitutional challenges in the future.

In the face of violations against your right to keep and bear arms, The Law Offices of George M. Sanders navigates the legal system with skill and determination, ensuring your voice is heard. With more than three decades of experience, we have honed our skills in complex litigation, and will fight to protect your civil rights. We understand the profound importance of this right, and we are ready to fight tooth and nail against any government abuse or infringement. Contact the Law Offices of George M. Sanders, P.C. today, and take the first step in protecting your Second Amendment rights.