The Volokh Conspiracy

That’s the title of my forthcoming article in the University of Michigan Journal of Law Reform. My co-authors are Clayton Cramer and Joe Olson. The abstract:

This Article is the first scholarly analysis of knives and the Second Amendment. Knives are clearly among the “arms” which are protected by the Second Amendment. Under the Supreme Court’s standard in District of Columbia v.  Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.

Bans of knives which open in a convenient way (bans on switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives which, after being opened, have a safety lock to prevent inadvertent closure.

Prohibitions on the carrying of knives in general, or of particular knives, are unconstitutional. There is no knife which is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on the carrying of handguns set the upper limit for restrictions on knife carrying.

The Article is just the beginning of long overdue scholarly analysis of laws about knives. Not all households own firearms, but almost every household owns a knife, even if we do not count table knives. Issues involving knife carrying come up quite frequently in state criminal courts, but the legal academy has thus far failed to provide the courts with useful guidance. Persons who are interested in writing on Second Amendment issues, and who wish to make an original contribution, will find that there is plenty to write about.

A puzzle, which I just learned about (see Clayton Cramer & Joseph Olson, Knives and the Second Amendment): Federal law generally bans the manufacture for interstate commerce and transportation and distribution in interstate commerce of switchblade knives, as well as possession of switchblades on federal territory.

It exempts, however, common carriers, the military, and military contractors; and it also exempts possession and transportation on one’s person by one other group (as to switchblades with a blade of three inches or less). A similar law in Maine was modified last year to exempt the same group. What is that favored group?

People v. Yanna (Mich. Ct. App. June 26, 2012) holds that Michigan’s stun gun ban violates the Second Amendment. I filed an amicus brief on behalf of AWARE (Arming Women Against Rape & Endangerment) in this case, and also wrote a law review article on the subject (Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms and Defend Life, 62 Stanford Law Review 199 (2009)), so I’m especially pleased by the result. I hope also that this leads to similar results in some of the other places which ban stun guns — D.C., Hawaii, Massachusetts, New Jersey, New York, Rhode Island, Virgin Islands, and Wisconsin, as well as the several cities that take a similar view, some of which are in relatively right-to-keep-and-bear-arms-friendly areas.

The court also in the process made three broader statements:

1. The Second Amendment applies not just to firearms but to other weapons as well. “[The state] argues that Heller is strictly a gun control case, but the broad nature of the language used in Heller’s definition of arms clearly covers more than just firearms.”

2. Even weapons that are “far less prevalent than handguns” may still be protected by the Second Amendment. “The prosecution also argues that tasers and stun guns [are] ‘unusual’ or rare weapons. However, they are legal in forty-three states, and in Michigan are routinely used by law enforcement officers. They have been in use for several decades. Though far less prevalent than handguns, we do not think that stun guns or tasers may be fairly labeled as unusual weapons.”

3. The Second Amendment extends to open carrying of at least some weapons — possibly including other “protected arm[s],” such as handguns — in public, and not just to possession in the home. “The next question is whether the protected status of these arms makes unconstitutional a complete ban on carrying them in public. Heller specifically addressed only a full ban of protected weapons inside the home, not in public. Further, the analysis in Heller focused in part on the unmatched popularity of handguns for self-defense, and did not make clear to what extent greater restrictions could be applied to less popular weapons.

“On the other hand, Heller states that concealed weapons may be banned, but makes no such statement regarding openly carried arms. Indeed, Heller cites with approval two state cases that struck down laws prohibiting the public carrying of hand guns. The Second Amendment explicitly protects the right to ‘carry’ as well as the right to ‘keep’ arms. Likewise, the Michigan Constitution specifically allows citizens to ‘bear’ arms for self-defense. We therefore conclude that a total prohibition on the open carrying of a protected arm such as a taser or stun gun is unconstitutional.”

In Delaware, carrying any knife — including a kitchen knife or a paring knife or anything other than a closed folding knife with a blade of 3 inches or shorter — concealed is a felony, even in your home, unless you have a concealed weapons license. 11 Del. Code § 1442 provides,

A person is guilty of carrying a concealed deadly weapon when the person carries concealed a deadly weapon upon or about the person without a license to do so as provided by § 1441 of this title.

And 11 Del. Code § 222(5) defines “deadly weapon” to include “a knife of any sort (other than an ordinary pocketknife carried in a closed position),” with “ordinary pocketknife” being defined as “a folding knife having a blade not more than 3 inches in length.” So, yes, if you pop a steak knife or a paring knife in your pocket in your own home in Delaware, you are (according to the statutes) committing a felony.

William Griffin was using a steak knife to open boxes in his basement, and put the knife in his pocket. The police came because of a domestic dispute, and arrested him for the dispute. After this, they discovered his knife, and he was convicted of resisting arrest, criminal mischief, and felony carrying a concealed deadly weapon.

Monday, the Delaware Supreme Court reversed (State v. Griffin (Del. June 18, 2012)) — the Delaware Constitution’s right to keep and bear arms provision, the court held, generally protects a right to carry concealed weapons, including knives, in the home, so long as they are carried for a lawful purpose. (The court had earlier concluded that the right does not extend to carrying concealed weapons, at least firearms, outside the home.)

The court did conclude that the right might be lost if the police ask the person in his home whether he is carrying a weapon, and he falsely denies this:

We conclude, therefore, that Griffin’s constitutional right to bear arms authorized his carrying a con-cealed knife in his home. But that does not end the inquiry. When the police confronted Griffin at the top of the basement stairs, they asked whether he had a knife. At that point, the balance between his interest in carrying a concealed weapon in his home and the State’s interest in public safety shifted in favor of the State. Griffin was no longer using the knife for household purposes, and his failure to reveal that he was carrying a weapon could have represented a serious threat to both the police and his girlfriend.

And the court therefore reversed the conviction and remanded for a new trial:

Griffin says he told the police that the knife was in his pant leg. The police say he told them the knife was in the basement. If the jury believes Griffin, he cannot be convicted for CCDW [carrying a concealed deadly weapon]. He was entitled to be carrying the concealed knife in his home, and he revealed the knife’s concealed location when asked by the police. Griffin was unable to remove the knife from his pant leg because he was handcuffed, and he did not voluntarily leave his home while carrying the weapon. If, instead, the jury believes the police, then Griffin was subject to prosecution for CCDW. Although he may not have had an unlawful purpose for continuing to conceal the weapon, he no longer had a constitutionally protected right to do so.

At trial, the jury was not instructed to decide whether Griffin was given the opportunity to disclose that he was carrying the knife, and, if so, whether he did so truthfully. Under the specific circumstances of this case, those factual findings will determine whether Griffin can be convicted of CCDW.

This conclusion follows most modern cases that have considered the subject.

State v. Delgado, 692 P.2d 610 (Or. 1984) (striking down a ban on possessing and carrying switchblades); State v. Blocker, 630 P.2d 824 (Or. 1981) (striking down a ban on carrying billy clubs in public); State v. Kessler, 614 P.2d 94 (Or. 1980) (striking down a ban on possession of billy clubs); Barnett v. State, 695 P.2d 991 (Or. Ct. App. 1985) (striking down a ban on possession of blackjack); see also Hill v. State, 53 Ga. 472, 474-75 (1874) (taking the view that “swords” and “bayonets” are protected because they “are recognized in civilized warfare”); Ex parte Thomas, 97 P. 260, 262, 265 (Okla. 1908) (following Hill and finding likewise); City of Akron v. Rasdan, 663 N.E.2d 947 (Ohio Ct. App. 1995) (treating a ban on public carrying of knives as implicating the right to bear arms, though concluding that the ban was a “reasonable regulation” and thus did not violate the constitutional provision); City of Seattle v. Montana, 919 P.2d 1218, 1222 (Wash. 1996) (noting the question of whether knives are protected but not reaching it); Concealed Handgun Permits, 1994 Alaska Op. Atty. Gen. (Inf.) 209 (suggesting that the Alaska courts may adopt this position, though not making a definitive prediction). But see State v. Swanton, 629 P.2d 98, 98 (Ariz. Ct. App. 1981) (holding that nunchakus are not arms, because “arms” is limited to “such arms as are recognized in civilized warfare and not those used by a ruffian, brawler or assassin”); State v. Kerner, 107 S.E. 222, 224 (N.C. 1921) (“[None of a] ‘bowie knife, dirk, dagger, slung-shot, loaded cane, brass, iron or metallic knucks or razor or other deadly weapon of like kind’ . . . except ‘pistol’ can be construed as coming within the meaning of the word ‘arms’ used in the constitutional guaranty of the right to bear arms.”).

State v. Delgado, 692 P.2d 610 (Or. 1984) (striking down a ban on possessing and carrying switchblades); State v. Blocker, 630 P.2d 824 (Or. 1981) (striking down a ban on carrying billy clubs in public); State v. Kessler, 614 P.2d 94 (Or. 1980) (striking down a ban on possession of billy clubs); Barnett v. State, 695 P.2d 991 (Or. Ct. App. 1985) (striking down a ban on possession of blackjack); see also Hill v. State, 53 Ga. 472, 474–75 (1874) (taking the view that “swords” and “bayonets” are protected because they “are recognized in civilized warfare”); Ex parte Thomas, 97 P. 260, 262, 265 (Okla. 1908) (following Hill and finding likewise); City of Akron v. Rasdan, 663 N.E.2d 947 (Ohio Ct. App. 1995) (treating a ban on public carrying of knives as implicating the right to bear arms, though concluding that the ban was a “reasonable regulation” and thus did not violate the constitutional provision); 1986 Fla. Op. Att’y Gen. 2 (concluding that the right to keep and bear arms covers stun guns and Tasers, determining that “the term [‘arms’] is generally defined as ‘anything that a man wears for his defense, or takes in his hands as a weapon’”); City of Seattle v. Montana, 919 P.2d 1218, 1222 (Wash. 1996) (noting the question of whether knives are protected but not reaching it); Concealed Handgun Permits, 1994 Alaska Op. Atty. Gen. (Inf.) 209 (suggesting that the Alaska courts may adopt this position, though not making a definitive prediction). But see State v. Swanton, 629 P.2d 98, 98 (Ariz. Ct. App. 1981) (holding that nunchakus are not arms, because “arms” is limited to “such arms as are recognized in civilized warfare and not those used by a ruffian, brawler or assassin”); State v. Kerner, 107 S.E. 222, 224 (N.C. 1921) (“[None of a] ‘bowie knife, dirk, dagger, slung-shot, loaded cane, brass, iron or metallic knucks or razor or other deadly weapon of like kind’ . . . except ‘pistol’ can be construed as coming within the meaning of the word ‘arms’ used in the constitutional guaranty of the right to bear arms.”).

Disclosure: I have filed an amicus brief on behalf of Arming Women Against Rape & Endangerment (AWARE) in a Michigan Court of Appeals case that is considering whether stun guns are covered by the right to keep and bear arms; the brief argues that the right to keep and bear arms is indeed not limited to firearms, but also includes stun guns.

For those of who have been waiting for an English translation of Russia’s arms statutes, your wait is over. Independence Institute intern Margot van Loon is the author of the new Issue Paper, Weapons Laws of the Russian Federation. Here is a synopsis:

• No permission or registration is needed to purchase and carry chemical defense weapons (e.g., tear gas guns) or electric defense devices such as stun guns.
• Citizens have the right to acquire shotguns for self-defense and sport.
• After five years of lawful ownership of a shotgun, a citizen may obtain a permit to purchase and use rifles for sporting purposes.
• An individual may own up to five rifles and five shotguns.
• Handguns are prohibited.
• All firearms must be registered.
• Before obtaining one’s first firearm, one must receive instruction in firearms laws and safety. Every five years, the firearms owner must pass a test demonstrating continuing knowledge of these subjects.
• The first-time owner must also obtain a medical certification that he or she does not have any disqualifying conditions, such as mental illness or alcoholism.
• In order to use a firearm for lawful self-defense, the crime victim must first attempt to give the criminal a warning, if practicable. Defensive use of firearms against women, the disabled, and minors is prohibited, unless they are attacking as part of a gang.

On the whole, the Russian Federation’s arms laws show considerably greater respect for the fundamental human right of self-defense than do the laws of some other European nations, such as the United Kingdom or Luxembourg.

The Russian Federation paper is part of continuing series of research papers from the Independence Institute providing full English translations of the arms laws of other nations. Other papers in this series are:

Colombia’s National Law of Firearms and Explosives. Full translation of the Colombian statutes, along with historical and narrative explanation. By Jonathan Edward Shaw.

Hungarian Weapons Law of May 2004. English translation and explanation, plus Hungarian text. By Crecy Azincourt.

Mexico’s Federal Laws on Firearms and Explosives.  By David Kopel.

If you would be interested in writing a paper for this series, please contact me using the information at the bottom of this page.

The first law school textbook on the Second Amendment is now available from Aspen Publishers. The co-author are Nick Johnson (Fordham), Michael O’Shea (Oklahoma City), George Mocsary (Connecticut), and me. Here’s the publisher’s page for the textbook, from which professors can request a free review copy. The book is also available for civilian purchase from Amazon.

We also have our own website for the book. There, you can read the detailed Table of Contents, and the Preface. The website is in an early stage of development; eventually, it will include detailed research guides and topic suggestions for students who are writing seminar papers. If you a professor and one of your students writes a seminar paper which makes a genuine contribution to knowledge about a topic, we invite you to send the us paper for publication on the website.

The textbook will have an accompanying Teacher’s Manual. We are currently finishing that up, and aim to have it available before the Fourth of July. (It’s free for professors who get a review copy, and forbidden for anyone else.)

Besides the 11 chapters in 1,008 pages of the printed book, there will also be four more on-line only chapters, available to purchasers of the printed book. These chapters will be: 12, Social science about firearms policy. 13, International law. 14, Comparative law. 15, A detailed explanation of firearms and their function. (Chapter 1 of the printed book provides a brief explanation of firearms and their function; the on-line chapter will go into much greater detail [e.g., what is a lever action gun?], and will have illustrations and photos.)

Finally, Firearms Law is the first law school textbook to be the subject of a podcast series. The published podcasts are: Chapter 3, The Colonies and the Revolution. Chapter 2, Antecedents of the Second Amendment: From Confucius to the British Whigs. Chapter 1, An introduction to firearms laws and firearms function. As the summer progresses, we will be adding more, and some chapters may have more than one. Thus far, all the podcasts are interviews of me, but as we make our way through the book, other co-authors will also appear in the podcasts.

Here’s the opinion in People v. Yanna (Mich. Cir. Ct. Apr. 21, 2011), the Michigan case that David Kopel mentioned.

The court’s ruling was based solely on the Second Amendment, and not on the Michigan right to bear arms provision, likely because People v. Smelter, 437 N.W.2d 341 (Mich. App. 1989), held that the Michigan provision does not protect stun guns. Smelter is the only court decision I know of, before this one, dealing with whether the right to keep and bear arms (under either a state constitution or the federal constitution) protects stun guns. The Yanna decision strikes me as correct, and Smelter wrong, for reasons I gave in my Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199 (2009); I hope Yanna will be affirmed on appeal.

The case involved a “stun gun” that requires direct contact between the main part of the device and the person whom one is trying to stun, and that thus can only be used from a very short distance. The case did not involve a stun gun, such as a Taser, that fires darts; but I think that the constitutional analysis should be essentially the same for both.

Note also that the defendant was carrying the gun openly, “while working behind the counter at a convenience store next to another employee who was [openly carrying] a firearm.” The firearm carrier was likely acting quite legally (and could even have gotten a licensed to carry a firearm concealed, since Michigan is a shall-issue state). The stun gun carrier was breaking the law by even possessing a gun.

(Yanna himself also apparently had a criminal record; but he was charged under the general ban on possession of stun guns, not under any special law — which some states have — that bans stun gun possession by people with certain kinds of criminal convictions.)

So rules a state judge in Bay City, Michigan. According to the ruling, the regulation of stun guns would be constitutional, but not their prohibition. Other than Michigan, the only states that prohibit stun guns are New Jersey and Rhode Island.

Eugene Volokh’s Stanford Law Review article, Nonlethal Self-Defense examines the Second Amendment issues involving stun guns, chemical sprays, and the like, concluding that they are protected by the Second Amendment.

So holds People v. Nivar, 2011 WL 148743 (N.Y. Sup. Ct.) (a one-judge trial court decision):

Defendant also argues that New York City’s ban on the possession of air pistols, AC § 10-131(b), violates the Second Amendment....

This Court begins, as Heller did, with the meaning of the word “arms” and of the phrase “bear arms.” According to Heller, “[t]he 18th-century meaning [of "arms"] is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined arms’ as weapons of offense, or armour of defense.’ [Citation omitted.] 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.’ [Citations omitted.].” for the phrase “bear arms,” the Court adopted Justice Ginsburg’s definition in Muscarello v United States, 524 US 125, 143 (1998), which it said “accurately captured the natural meaning of bear arms,’” that is, “wear, bear or carry ... upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defensive action in a case of conflict with another person.’”

With these meanings in mind, and based on the information provided by the parties about how air pistols operate and how air pistol manufacturers intend them to be used, and not used, this Court must conclude that air pistols are not “arms.” The manufacturer of the air pistol that defendant is charged with possessing includes a disclaimer at the bottom of its Internet web page recognizing that air pistols are not firearms: “Do Not Brandish Or Display Your Airgun In Public. It May Confuse People And It May Be A Crime. Police And Others May Think An Airgun Is A Firearm” (Peo’s Br. at 17, quoting Gamo air pistols and quality airgun products, http://www.gamousa.com/category.aspx?category=pistols & catID=2 [last visited by the Court on Jan. 10, 2011]). The manufacturer’s web page also states that it designs air pistols and airgun ammunition “for small game hunting and pest control” and that its products are “used daily by hunters and outdoor enthusiasts” (Peo’s Br. at 20, quoting Gamo Adult Precision Airguns, http://www.gamousa.com [last visited by the Court on Jan. 10, 2011 ). In stark contrast, firearms manufacturers such as Smith and Wesson and the Italian company that makes the Beretta line of handguns “make it clear that their products are intended to be effective in self-defense scenarios.”

Continue reading ‘Air Guns Not “Arms” for Second Amendment Purposes’ »

So reports Alice Marie Beard — apparently the judge (in Placer County) just ruled from the bench, with no written opinion. California law generally totally bans all possession of nunchakus, except “on the premises of a school which holds a regulatory or business license and teaches the arts of self-defense.” I assume the state will appeal.

The memorandum supporting the motion to dismiss is here, and the reply is here; I don’t have the state’s opposition. The defendant is apparently a felon, but the defense lawyer argued that any exception to the Second Amendment for felons only justifies laws that specifically ban possession by felons, and not total bans such as this one.

An e-mail from KnifeRights.com reports that the “Senate has passed the conference report for the fiscal year 2010 Homeland Security Appropriations Bill with our amendment to the Federal Switchblade Act intact.” The bill now goes to President Obama for his expected signature. The bill makes technical changes in the definitions of the Federal Switchblade Act. In particular, under the revised statute, a “switchblade” is not: “a knife that contains a spring, detent, or other mechanism designed to create a bias toward closure of the blade and that requires exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure to assist in opening the knife.”

Earlier this year, the Customs Bureau had proposed revising several of its previous rulings; the effect would have been to bring a very large percentage of folding knives under the Switchblade Act. Knife Rights–with strong assistance from the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA) and from the National Rifle Association–led a public mobilization which garnered widespread, bi-partisan congressional support. At first, the citizen activism resulted in Customs halting its proposed regulatory change. Because the Switchblade Act’s original langauge is very broad, Knife Rights then worked for a permanent resolution to the problem, by clarifying the statute.

A citizen group with a shoestring budget, Knife Rights was founded in 2006. Today’s action is an impressive accomplishment for such a new organization.