Knives and the Right to Bear Arms (original) (raw)

There’s been a great deal of litigation recently about firearms and the Second Amendment. But guns aren’t the only “arms” sometimes carried for self-defense, and there have been several recent cases about the status of knives under the federal Constitution and state constitutions.

The most recent case is State v. Murillo, __ P.3d __, 2015 WL 170053 (N.M. Ct. App. Jan. 21, 2015), holding that the New Mexico statute prohibiting possession of a switchblade knife did not violate the state or federal constitutions. Applying intermediate scrutiny, the court found that the provision “bans only a small subset of knives, which are themselves a peripheral subset of arms typically used for self-defense.” Further, it found that the prohibition addresses the serious problem of the use of such weapons for criminal activity. The court specifically declined to follow State v. Delgado, 692 P.2d 610 (Or. 1984), which struck down Oregon’s switchblade ban under the state constitution’s right to bear arms.

Other recent cases about knives include State v. DiCiccio, 105 A.3d 165 (Conn. 2014) (holding that knives and batons are “arms” within the scope of the Second Amendment and that a state statute prohibiting the transportation of such weapons between residences impermissibly infringes the right to possess them), and City of Seattle v. Evans, 327 P.3d 1303 (Wash. Ct. App. 2014) (“[W]e hold that as applied in this case, Seattle’s prohibition on carrying a fixed-blade knife in public [in this case, a kitchen knife in the defendant’s pocket] did not violate [the defendant’s] federal constitutional right to bear arms.”).

Could litigation about knife laws arise in North Carolina? Absolutely. Our statutes regulating knives include:

• S. 14-269, which prohibits the concealed carrying of any “bowie knife, dirk, dagger,” or “other deadly weapon of like kind.” The statute doesn’t apply to an “ordinary pocket knife carried in a closed position.” In Matter of Dale B., 96 N.C. App. 375 (1989), the court ruled that a knife that was “about four and one-half inches in overall length, when folded,” was an ordinary pocket knife. However, the exception doesn’t cover switchblades, i.e., knives that that may be “opened by a throwing, explosive, or spring action.” So it is illegal to carry a switchblade or a fixed-blade knife in your pocket in North Carolina. Open carry appears to be OK.
• S. 14-269.2 prohibits the possession of any “bowie knife, dirk, dagger,” “switchblade knife,” or “any sharp-pointed or edged instrument” other than instructional supplies on educational property. So it is illegal to bring a pocket knife to school in North Carolina.
• S. 14-269.6 prohibits the possession of “any spring-loaded projectile knife.”
• S. 14-315 prohibits giving or selling any “bowie knife” or “dirk” to a minor.
• Many statutes address deadly weapons generally and likely apply to most knives. For example, G.S. 14-269.4 prohibits carrying “openly or concealed, any deadly weapon” in courthouses and in certain state buildings. I’m not aware of a case decided under that statute concerning the status of knives, but case law generally provides that “[t]he definition of a deadly weapon clearly encompasses a wide variety of knives.” State v. Sturdivant, 304 N.C. 293 (1981). See also State v. Walker, 204 N.C. App. 431 (2010) (concluding that a three-inch knife was a deadly weapon).

There are local regulations of knives as well. This website purports to contain a partial list of such ordinances. I haven’t checked it for accuracy. Perhaps one could argue that some such regulations are preempted by state law, but I’m not aware of any cases on that issue.

Those interested in further reading might check out David B. Kopel et al., Knives and the Second Amendment, 47 U. Mich. J. L. Reform 167 (2013) (arguing that knives are protected by the Second Amendment and that “[p]rohibitions on carrying knives in general, or of particular knives [such as switchblades], are unconstitutional”). Of course, if anyone has experience litigating related issues or is aware of additional state or local provisions that should be mentioned above, please let me know or post a comment.