Law and Order

Knives And The 2nd Amendment: Making The Cut (Part 1)

 Image: Chris Dumm

[Editor’s Note: 2nd Amendment analysis of knives and less-lethal weapons is a burgeoning field of academic research. David Kopel’s scholarly article has  inspired (or anticipated) a flood of inquiry into the intent and interpretation of the right to keep and bear arms other than firearms. This post is adapted from a research project originally written by Aaron Jossie, a law student and (as you will see) 2nd Amendment scholar. This should be the first installment in a series, as Aaron adapts his article for us.]

By Aaron Jossie

If you’re already a TTAK addict, you’ve already read about legislative measures in Texas and Tennessee that would make switchblades legal to own and carry. Texas and Tennessee are not the first states to recognize that switchblades out not to be restricted, and hopefully those states are not the last either. Why should all states eliminate restrictions on switchblades, especially in the hands of concealed carry firearm permit holders? Make the jump to find out at least my perspective . . .

The landmark Supreme Court case of District of Columbia v. Heller held that the Second Amendment protects the individual right to keep and bear arms for self-defense, and a subsequent case, McDonald v. City of Chicago, held that the Second Amendment is applicable to the states through the Fourteenth Amendment. These cases clarified the scope of the Second Amendment of the constitution, but muddied the waters of how federal and state courts interpret “right to bear arms” provisions.

Among the debate of what the “right to bear arms” means and who and what it protects, conspicuously missing is discussion of edged weapons and the role knives play as protected “arms” for purposes of self-defense. We all love TTAG and know much about the current state of affairs concerning guns thanks to RF and Co. but there is much to be said about knives, and alas, here is the platform we’ve all been waiting for…

Despite what has happened legislatively since Newtown, for the most part, concealed carry laws across the country have not changed much. It is still probably safe to say that three-quarters of the states in America have relatively favorable concealed carry laws. As we all know, most states are “shall issue,” and some states are “may issue.” This means that shall-issue states will issue a permit as long as certain objective qualifications are met. “May issue” states will grant a carry permit to those who typically have good reason to fear an injury to his or her person or property or has any other proper reason for carrying a pistol or revolver, and that he or she is a suitable person to be so licensed. And then there’s Illinois, but that’s a whole other post…

Some states’ licenses permit the individual to carry a concealed weapon, not limited to firearms. Other states limit the license to just firearms. The varying permit structure of the states that allow the concealed carry of firearms but not certain knives or other defensive instruments, compared to states that allow the concealed carry of any concealable weapon for purposes of self-defense creates a problem for qualified individuals who may desire to carry a concealed weapon other than a firearm for purposes of self-defense but potentially cannot do so in their state because of the type of permit that state issues.

For instance, in one state, carrying a switchblade knife may be legal to carry concealed with a concealed weapon permit, (otherwise prohibited without a concealed weapon permit) but would be illegal to carry in another state even with a concealed firearm permit from that state. Take Kansas and Kentucky for example. Both are “shall-issue” states, but currently in Kansas, if you have a permit to carry a concealed firearm and carry a switchblade, you’re breaking the law. But in Kentucky, if you have a permit, you can carry a concealed firearm or other deadly weapon, or a combination thereof, on or about your person.

The type of permit granted by states is many times indicative by the name of the permit issued. Hence, in one state, the permit is referred to as a “concealed carry weapon permit,” and in the other it is a “concealed firearm permit” or “concealed handgun license” (or some variation). As such, often it is the case that a “concealed firearm permit” only permits the concealed carry of a firearm (handgun) but does not permit the concealed carry of other dangerous or deadly weapons.

This series will explore several topics relating to knives as defensive tools and how states do and should regulate certain types of knives. Throughout the series I’ll explain why a state that’s willing to grant law-abiding citizens a license to carry a firearm should likewise allow the carrying of any concealable weapon in the alternative or in addition to a firearm, and more specifically, any type of knife that is concealable. For simplicity, I’ll frequently refer to switchblades because they are a type of knife that has been the target of specific legislation both at the federal and state level.

In another post I’ll discuss certain policy arguments explaining the differences between permit structures that allow concealed carry of firearms only versus those that allow carrying of firearms and other weapons. I will also point out that for purposes of concealed carry permit holders, by virtue of being statutorily authorized to carry a firearm, the permit holder should also be able to carry other types of arms for purposes of self-defense. Additionally, future posts will discuss how the right to self-defense extends beyond the home and how categorizing arms affects those who carry arms in case of confrontation outside the home.

More to the point, although state governments have a legitimate interest in preventing or reducing crime, statutes that regulate or prohibit the possession or concealed carrying of weapons such as certain types of knives, as applied to concealed firearm permit holders, are unconstitutional under the precedent set by the Supreme Court in Heller and McDonald as well as other state cases because the prohibitions place a substantial burden on statutorily authorized citizens in their ability to defend themselves from an unlawful attack in a manner of their choosing.

Watch this space…

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Discussion

One response to “Knives And The 2nd Amendment: Making The Cut (Part 1)

  1. Not only knives, but other “weapons” as well. I live in PA and have a concealed carry permit. Years ago, I bought an ASP collapsible baton. I also keep a 6 “c” cell maglite in my car. I always carry the ASP when I hike or take a walk and have had two occasions to whack a dog on the nose with it. I have heard that either or both of these could be illegal. I have spoken to several police officers and sheriff’s deputies about this and could not get a straight answer. They all said that it would depend on who you might have a run in with. It might cause you trouble with some LEO’s, since none of them seem to know for sure.
    BTW, my EDC is a Spyderco Endura or a Griptillian.

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