A tale of Two States: Opposite Court Opinions on Second Amendment and Knives

Flylock switchblade made 1918 to 1929.  3 3/8 inches long, closed. This knife is one of those banned by law in California.

The United States District Court for the Southern District of California (August 23, 2024) and the Supreme Judicial Court for the Commonwealth of Massachusetts (August 27, 2024) reached opposite opinions on whether bladed weapons qualify as arms mentioned in the text of the Second Amendment.

The Second Amendment reads: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

In 2008, the Supreme Court examined the the meaning of the words in the amendment. Heller found the meaning of “arms” to be the same at the time of the ratification of the Second Amendment as it is today. From Heller:

 Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”

This is directly from the Heller decision. It is not dicta. It is Justice Anthony Scalia directly explaining what the words in the Second Amendment mean. The Massachusetts Supreme Court quotes Scalia, from the Heller decision, in its opinion about whether knives are “arms” referred to in the text of the Second Amendment. From the case of  Commonwealth v Canjura, published on August 27, 2024:

 The Heller Court provided two Eighteenth Century definitions of the term: “[w]eapons of offence, or armour of defence,” as defined in the 1773 edition of Samuel Johnson’s dictionary, and “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another,” as defined in Timothy Cunningham’s 1771 legal dictionary. Id. The parties do not dispute switchblades fit these dictionary definitions of “arms”; like handguns, a person can carry a switchblade for offensive or defensive purposes in case of confrontation. 

The Massachusetts Supreme court shows, at the time of the ratification of the Second Amendment, folding pocket knives were ubiquitous and commonly carried for a multitude of lawful purposes, including use as a weapon.

The court noted the carry of swords, hatchets and large knives were also common. Those bladed weapons are arms as defined in the text of the Second Amendment. It is absurd to believe handguns are protected by the Second Amendment, but bladed weapons are not.

The United States District Court for the Southern District of California tries to support such an absurdity in its opinion, published on August 23, four days before the Massachusetts opinion. The court ignores the definitions in Heller, ignores the unanimous opinion in Caetano, and ignores the guidance in the Bruen decision by the Supreme Court. The Court accepts a novel theory put forward by the State of California. The theory is composed of several assumptions, not supported by the facts.

• The previous decisions by the Supreme Court only apply to firearms.
• To be included in the text of the Second Amendment, it is the burden of those claiming the arms are inside the definition, to prove the arms are in common use for self defense.
• To be included in the text of the Second Amendment, arms must be proved to *not* be dangerous and unusual.

The District court shifts the burden of proof from what has been decided by the Supreme Court, to a standard where every arm which is not a firearm, must be proven to be in common use for self defense (instead of simply commonly possessed for lawful purposes) and *not* dangerous and unusual.

Every weapon, by definition, can be dangerous, so “dangerous and unusual” becomes simply “unusual”. The District Court ignored the unanimous Supreme Court ruling in Caetano, which states the text of the Second Amendment covers all bearable arms, no matter when they were first invented or used. From Caetano:

The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008) , and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010) .

By concluding the only arms within the text of the Second Amendment are those which are proved to be *not unusual*, the court provides a path for most weapons to be banned.  Arms can be divided into an infinite number of categories, with each category in numbers small enough to be argued as “unusual”. An example would be a folding knife with a blade over two inches long which can be opened with one hand, where the blade locks in place when open. By including the caveat where an arm must be proved to be commonly used for self defense, the court creates the potential to require some number of actual police reports where a knife was used in self defense.  It could require such confrontations to be officially adjudicated to be defensive to be recognized by the court.  Under such “logic” most bans on arms could be found to be constitutional, an absurd conclusion, obviously desired by the Government of California.

To reach this absurd conclusion, the District Court refused to accept evidence the knives in question “are common numerically, jurisdictionally, and categorically.”  The District Court creates a new standard, where instead of depending on the text of the amendment as defined in Heller, Caetano, and Bruen, the plaintiff contending their conduct is covered by the Second Amendment must prove the arm in question is “in common use for self defense”.

The new standard turns the Supreme Court decisions about the Second Amendment on their head.

Analysis:

The different approaches of the two courts show the stark difference between states which are following the Supreme Court guidance on the Second Amendment, and those which are doing everything in their power to defy the Supreme Court. Roughly ten states desperately want to return to those dark days when the Second Amendment was a dead letter in the law. If the Ninth Circuit upholds the theory used in the Southern District of California Court, there will be a jurisdictional split on whether common knives are considered arms within the text of the Second Amendment.

The Massachusetts Supreme Court followed Heller, McDonald, Caetano, and Bruen. The Supreme Court and the historical view of the right to keep and bear arms is prevailing, if slowly. The reluctance of the Ninth Circuit to recognize the Second Amendment as part of the Bill of Rights shows where the Supreme Court is likely to go if Kamala Harris becomes president and the Democratic party is allowed to gain control of the Supreme Court. Methods to do this, including court packing or by imposing unconstitutional restrictions on the court are being actively proposed by the Biden administration and prominent members of the Democratic Party.

©2024 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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