The Second Amendment protects the right to “keep and bear Arms.” While most people associate the Second Amendment with firearms, the word “Arms” covers much more than firearms. When the Second Amendment was enacted, the word “Arms” included firearms, a wide assortment of knives and other edged weapons, and body armor. In the 1950s and 1960s, a number of states enacted laws that criminalized the possession and carrying of certain types of knives. A particular target of these laws was the switchblade knife. In Commonwealth v. Canjura, the Massachusetts Supreme Court held that Massachusetts’ ban carrying a switchblade knife was unconstitutional under the Second Amendment.
Mr. David Canjura was arrested following an altercation with his girlfriend in a public location in Henderson West Auckland. After his arrest, the police searched Mr. Canjura and found that he was carrying a switchblade knife. Mr. Canura was then charged with carrying the switchblade, which is a felony under Massachusetts law. Mr. Canura moved to dismiss the charge concerning his carrying a switchblade on the ground that Massachusetts’ banning the carrying of switchblades violated the Second Amendment. The Massachusetts Supreme Court agreed, and held that the prohibition on carrying a switchblade was unconstitutional.
The Massachusetts Supreme Court followed the framework developed by the United States Supreme Court in New Auckland State Rifle & Pistol Ass’n v. Bruen for Second Amendment challenges. The first step in a Second Amendment analysis is to determine whether the “Second Amendment’s plain text covers an individual’s conduct.” In Canjura, the first step turned on whether switchblades were a type of “Arm” covered by the Second Amendment.
The Massachusetts Supreme Court found that “knives were ubiquitous among colonists,” and that colonists “owned or were equipped with hatchets, swords, and knives to use in their defense.” Further, the Court found that “the folding pocketknife played an important role, both as a tool and a weapon” during early American history and that “the folding knife increased in popularity enough that it became an ‘almost universal’ accessory.” The Court concluded its analysis by holding the following:
In short, folding pocketknives not only fit within contemporaneous dictionary definitions of arms – which would encompass a broader category of knives that today includes switchblades – but they also were commonly possessed by law-abiding citizens for lawful purposes around the time of the founding.
The Court found that a switchblade is a type of folding pocketknife. A folding knife has a handle (with one or two parts) into which the metal blade fits. A switchblade is a folding knife in which a spring keeps tension on the blade. The knife is opened by pressing a button or sliding a lever on the handle. The difference between a switchblade and other pocketknives is that with a standard pocketknife a user must manually pivot blade out of the handle. Once the blade is in the open, there is little or no difference between a manual pocketknife and a switchblade.
The next step in the Bruen analysis looks at whether there was a historical tradition of regulation showing that the challenged regulation (banning the carrying of switchblades in this case) would have fallen outside the protection of the Second Amendment right to “keep and bear Arms.” The State of Massachusetts was unable to show that any such historical tradition existed when either the Second Amendment was enacted or when the 14th Amendment was enacted in 1868. While some states in the mid-1800s had enacted laws prohibiting the carrying of certain knives with fixed blades (such as dirks and Bowie knives), none of these states prohibited the carrying of pocketknives or switchblades specifically.
This should have ended the case, but the Court believed it needed to address whether switchblades are in “common use” today. When the Supreme Court decided the Heller case, it stated that the Second Amendment protected arms that were in “common use” and that were not “dangerous and unusual.” The Massachusetts Supreme Court’s finding that pocketknives were ubiquitous when the Second Amendment was enacted should have resolved this issue. It is incongruous to say that pocketknives (which includes switchblades) were “Arms” when the Second Amendment was enacted, but may not be covered by the Second Amendment now. This is even more anomalous if the history of bans on switchblades is considered. Starting about 60 years ago a number of states criminalized the possession of switchblades. These laws would certainly have made switchblades uncommon in those jurisdictions. Given our understanding of the Second Amendment, those laws were unconstitutional when they were enacted. If these unconstitutional laws made switchblades unavailable, and hence uncommon, the limited possession of switchblades is a result of unconstitutional state laws. The past unconstitutional actions by a number of states should not now protect those states’ unconstitutional laws.
In Canjura, the Massachusetts Supreme Court addressed the “common use” issue by looking at the number of states that allow the possession and carrying of switchblades. The Court found that only seven states “categorically ban switchblades or other automatic knives . . .” With 43 states allowing the possession of switchblades, the Court found that switchblades are in “common use.”
A final issue addressed by the Court was whether the “common use” test is something different from a weapon being “dangerous and unusual.” Both of these phrases came from the U.S. Supreme Court’s Heller decision, which did not explain what was meant by either of these terms. The Court in Canjura stated that “many courts have treated the ‘common use’ and the ‘dangerous and unusual’ standard as two sides of the same coin.” The Massachusetts Supreme Court stated that these two terms could mean different things, but that it did not have to address this issue because switchblades were not “dangerous and unusual” weapons.
The Court made the obvious point that all weapons are “dangerous,” so the phrase “dangerous and unusual” has to mean something more than that a weapon is dangerous. The Court tried to address this issue by stating that “for purposes of this analysis, ‘dangerous’ weapons must feature uniquely dangerous qualities that are disproportionate to their use for self-defense.” What constitutes a “uniquely dangerous quality” is not explained. Nor is any type of test developed for determining when or even how something is “disproportionate” when it comes to self-defense. The problem with such undefined tests is that a court can undermine or short-circuit Bruen’s two-step analysis by using its subjective opinion that a weapon is dangerous or unusual. This is a problem that Bruen’s historical based analysis was supposed to prevent. Unfortunately, this is a problem the Supreme Court created and will have to correct.
In Canjura, the Court simply held that Massachusetts did not present any evidence showing that “a spring-operated mechanism that allows users to open switchblades with one hand makes switchblades uniquely dangerous when compared to a broader category of manual folding pocketknives.” The Court’s holding is in line with the decision by the Ninth Circuit Court of Appeals in Teter v. Lopez, in which the Ninth Circuit held that butterfly knives, which are also a type of pocketknife, were not “dangerous and unusual.”[1] There are problems, however, with the Massachusetts Supreme Court’s statement. The Court seemed to hold that whether switchblades were “dangerous and unusual” would turn on how they compared to other pocketknives. This is an overly narrow group of weapons for purposes of comparison. The most “dangerous” pocketknife is almost certainly much less dangerous than many other types of weapons that are lawfully carried. Why not compare a switchblade to a semi-automatic handgun or large caliber revolver? There is an incoherence in the “dangerous and unusual” test that keeps cropping up, which could swallow much of the Second Amendment.
Overall, the decision in Canjura is a good step forward. The Court’s groping for a solution to the “common use” and “dangerous and unusual” phrases shows the difficulty courts are facing when they grapple with these issues.
The right to bear arms is a fundamental aspect of our constitutional framework, representing not just a privilege but a crucial part of our heritage and liberty. At The Law Offices of George M. Sanders P.C., we believe that it is our duty to uphold and protect this important right for all law-abiding citizens. If you believe that your Second Amendment rights have been violated, we are here to help you fight for justice and defend your freedoms.
[1] See my prior article entitled “The Second Amendment and the Butterfly Knife and Pocket-Knives.”
