How London’s Knife Ban Could Happen Here

   04.30.18

How London’s Knife Ban Could Happen Here

NOTE: This article is about knives and the law.  It is not legal advice.  If you need legal advice, consult a local lawyer.

Let me state this at the outset–I don’t think a London-style ban here would be tolerated either by the courts or the citizenry. But this is not a piece about breathless speculation regarding government forces seizing knives. In this case there is no need for the New World Order or a crazy black helicopter conspiracy theory. Government regulation of knives is real, we have examples of it now, and London’s call for restrictions could technically happen here.

New York City’s knife laws are some of the worst in the country, and it is all because of a crazy reading of the gravity knife law in New York state. But even without a crazy reading of existing laws, because of a quirk in Heller v. District of Columbia, knives are less protected by the Second Amendment than firearms.

Background

Sadiq Khan recently called for a ban on knives in London. After a “spike” in homicides (London’s rate last year is still lower than New York’s, it just happens to be that through April 2018 London had more murders than New York; trends over the last few years indicate this is a statistical anomaly more than anything else–murders clumping in the first part of the year). Khan posted the following on Twitter: “No excuses. There is never a reason to carry a knife. Anyone who does will be caught and they will feel the full force of the law.” Politicians of all stripes know that fomenting fear is a popular and easy way to stir votes, even across the ocean.

This statement caused something of a furor in the Internet Knife Community and for good reason–we all like to carry our knives and none of us plan on killing someone. But the question remains: could this happen in the US?

Unlike in Great Britain where laws are ancient, complex, and without constitutional grounding, our laws are rooted in the US Constitution. We also have a dual sovereign system where citizens are subject to both state and federal laws and state and federal constitutions.  According to Michigan v. Long, an individual can have more rights under a state constitution, but never less than those guaranteed by the federal constitution.

Why Knives are Different than Firearms

The problem here is that the Second Amendment right to bear arms has not been uniformly and consistently interpreted as protecting knives.  Here is why.

In Heller v. District of Columbia the US Supreme Court, an opinion written by Antonin Scalia did a deep dive on the Second Amendment. There, for the first time, the court held that the Second Amendment right to bear arms was an individual right. Heller also outlined with almost scientific precision the sorts of arms that are protected. In his analysis, Scalia found that the historical understanding of arms at the time included firearms but that was it. He did not extend the Second Amendment protection to any other kind of tool or means of defense.

Heller was just the first step. In our dual sovereign system, the Bill of Rights only bars the federal government from interfering with individual citizens. By its own terms, states would be free to interfere and regulate all of the rights in the Bill of Rights, including the Second Amendment.  However, early constitutional jurisprudence realized that this was a silly system and held that certain rights in the Bill of Rights were “necessary in a scheme of ordered liberty” and therefore are applied against both the federal AND the state government. These rights are called “incorporated rights.” In subsequent cases, like McDonald v. City of Chicago, the Court incorporated the Second Amendment and limited the states’ ability to infringe on the right to bear arms.

However, in all the cases that followed Heller, the US Supreme Court never held that knives were similarly protected. In fact, Scalia was careful in his analysis of arms and that analysis has been made part of Second Amendment jurisprudence ever since.

Faced with this very limited class of protected weapons, some courts have refused to apply the Second Amendment to knives.

For example in City of Seattle v. Evans, the Washington Supreme Court refused to consider a paring knife found on a citizen during a traffic stop protected by the Second Amendment. Instead, relying on Scalia’s language in Heller, the court found that arms were traditionally weapons used in self-defense and that paring knives were not self-defense weapons.

Oddly, the court analogized a paring knife to a short-barreled shotgun, a court favorite example of a non-protected firearm. In Thrift v. State, the Alaska Supreme Court made the same point–knives are not specifically protected under Heller because they are not “arms” in the same sense as firearms are in that case’s historical analysis. Based on a strict reading of Heller and its historical sources, these courts are correct–knives aren’t explicitly protected by Heller.

Two Rays of Hope

Not all courts are legalistic as the courts in Evans and Thrift. One of the best written knife opinions, post-Heller is from Connecticut. There in a case called State v. DeCiccio, the Connecticut Supreme Court found that the right to transport (and therefore possess) a knife was a corollary to the right of self-defense at the heart of the Second Amendment. The court noted that the knife in question–a dirk knife–did fall into a more expansive reading of Heller’s “arms” analysis. The court also noted that banning the transport of arms made it practically impossible to carry them in self defense.

In addition to the courts that have held that the Second Amendment logically extends to a protection of knives, the US Supreme Court in Caetano v. Massachusetts struck a blow against legislation of less lethal means of self-defense. In this case, the court held that it was absurd to ban stun guns when firearms were constitutionally protected. Obviously this logic extends to knives as well.

The problem with Caetano, however, is twofold. First, it was per curiam opinion–which means that the justices signed on en masse. The actual useful language comes in a Alito concurrence, which does not have the same binding precedential effect that the main opinion does. Second, some courts have taken the granular approach to the issue–going weapon by weapon instead of using a broader, logic-based approach.

London’s knife ban could happen here, under a strict reading of Heller. Knives aren’t protected the same way guns are, even if such a conclusion is logically absurd. But reasonable courts (and the twin powers of commonsense and public opinion) make it unlikely. Additionally, cases like DeCiccio and Caetano would serve as bulwark against a knife ban.

Either way, the law is clear–knives are less protected and more regulated than guns in a lot of places. For many reasons, that makes no sense.

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