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Thread: "Knives and the Second Amendment" Legal Article Published

  1. #1
    Spyderco Forum Registered User critter's Avatar
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    Thumbs up "Knives and the Second Amendment" Legal Article Published

    The first detailed scholarly analysis of knives and the Second Amendment has been published in the University of Michigan Journal of Law Reform (vol. 47, pages 167-215). Authored by noted Second Amendment scholars Dave Kopel, Clayton Cramer and Joe Olson, the paper makes the case for knives as "arms" protected by the Second Amendment, supporting one of Knife Rights' foundational tenets.

    Knife Rights applauds these scholars for this long-overdue effort. This is a great start on the sort of scholarly work that needs to be done to assist in potential legal cases down the road. The arguments made and supported in this article will also support our legislative efforts to roll back knife bans and oppose proposed new restrictions on knives.

    (Note: If you reviewed an earlier draft this past spring there are many, many changes in the final article that make it worthwhile to review again)

    The complete article "Knives and the Second Amendment" can be downloaded at: http://bit.ly/18DguDJ

    Kopel writes in his blog: The Second Amendment guarantees the right to keep and bear “Arms”–not solely “firearms.” While firearms have always been the paradigmatic Second Amendment arm, there are many other types of arms which are protected by the Second Amendment. By far the most common of the other arms are knives.

    • 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.
    • There is no knife that is more dangerous than a modern handgun; to the contrary, knives are much less dangerous. Therefore, restrictions on carrying handguns set the upper limit for restrictions on carrying knives.
    • Prohibitions on carrying knives in general, or of particular knives, are unconstitutional. For example, bans of knives that open in a convenient way (e.g., switchblades, gravity knives, and butterfly knives) are unconstitutional. Likewise unconstitutional are bans on folding knives that, after being opened, have a safety lock to prevent inadvertent closure.


    The article provides an explanation of various types of knives, of criminological evidence regarding knives, and of the 19th century panic and case law about Bowie Knives and Arkansas Toothpicks. We then apply the Second Amendment to modern knife laws. We cover the utility of knives for personal self-defense and for militia use, and the constitutional significance of technological changes in knives since 1791. Finally, the article considers some modern prosecutions, statutes, and cases from Washington, Oregon, Indiana, New York, and D.C. We conclude that even under the weakest relevant standard (intermediate scrutiny), blanket bans on the carrying of knives (or of certain types of knives, or of knives with a blade longer than a particular length) as well as bans on the home possession of some types of knives violate the Second Amendment. See the complete blog post at: http://www.volokh.com/2013/11/23/knives-second-amendment/

    The complete article can be downloaded at: http://www.kniferights.org/Knives-an...-Amendment.pdf

  2. #2
    Spyderco Forum Registered User
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    Just thinking, but if they classify knives under the 2nd amendment as arms then THEY will be going after them along with the firearms! But if knives were classified as tools( hammer, saw, screwdriver etc. ) then they could not ban them! Am I right or not?

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    Spyderco Forum Registered User The Deacon's Avatar
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    Let me get this straight. Rather than arguing that knives are essentially tools that are used daily by virtually every person, law abiding or otherwise, and used only rarely as offensive weapons ane even more rarely as defensive ones, Knife Rights is now espousing the premise that they are weapons and that our right to own and use them should be "protected" in the same way as our right to own firearms. That would seem to imply that you folks would be OK with the idea of background checks for all edged tools and fingerprinting and permit requirements for concealable knives if we wish to carry them outside our own property. Perhaps even limiting our purchase options to either buying from a dealer in our own state or paying extra to have our new knife shipped to a federally licensed dealer. Graivty knives and switchblades would be legal at the federal level but, like automatic weapons, only if you paid a $1000 "transfer tax". With friends like this...
    Paul
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    Spyderco Forum Registered User yablanowitz's Avatar
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    No, actually most of the things you site are unconstitutional as well, for all that they are in place. If you read the referenced article, the gist of it is that laws restricting knives more than guns, such as blade length and switchblade laws, do not stand legal scrutiny.
    I don't believe in safe queens, only in pre-need replacements.

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    If they are going to classify knives as arms protected under the 2nd amendment, that seems like an end-around to ban them also! I agree with Deacon! With friends like this who needs enemies! They are nothing but wolves in sheep's clothing! Knives are tools, and should not be brought under the 2nd amendment!

  6. #6
    Spyderco Forum Registered User The Deacon's Avatar
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    Quote Originally Posted by yablanowitz View Post
    No, actually most of the things you site are unconstitutional as well, for all that they are in place. If you read the referenced article, the gist of it is that laws restricting knives more than guns, such as blade length and switchblade laws, do not stand legal scrutiny.
    That was half my point, Jack. The 2nd Amendment has been disrespected at the state and local level for over 100 years, and at the federal level for at least 80. It would offer knives all the protection of a leaky umbrella, at best. But what's more disturbing to me is that, by invoking it's protection for knives, you give up the more accurate defense of them as tools. That, not a problem for an ivory tower academician, who may either not understand the implications of that choice or understand them perfectly, but for an organization ostensibly "on our side", it should be.
    Paul
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    Dead horses beaten, sacred cows tipped, chimeras hunted when time permits.
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  7. #7
    Spyderco Forum Registered User yablanowitz's Avatar
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    So you don't want to become involved in the struggle to reclaim our constitutional rights from our tyrannical government? I guess I can respect that even though I don't agree with it.
    I don't believe in safe queens, only in pre-need replacements.

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    That is not what was said. The PRESENT 2nd amendment interpretation stands only until a new liberal supreme court nominee replaces an old conservative one! Then the 2nd amendment will not be applied to individuals! There go your guns, and knives if they are classified as arms! That is what we are saying!

  9. #9
    Spyderco Forum Registered User The Deacon's Avatar
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    Quote Originally Posted by yablanowitz View Post
    So you don't want to become involved in the struggle to reclaim our constitutional rights from our tyrannical government? I guess I can respect that even though I don't agree with it.
    Interesting way to twist my post. Fact is, I've been an NRA member and strong supporter of the 2nd Amendment for over 50 years. I'm enough of a realist to know that getting all the various existing laws that infringe on the absolute right it confers to use is an impossible dream but I haven't given up that fight by any means.

    What I absolutely do not want to become involved in would the the wrong headed premise that knives (as opposed to swords and lances) are "arms" and thus covered by the 2nd Amendment. I also believe that making that claim leaves knives open to more regulation as "concealable weapons" rather than offering them protection from regulation.
    Paul
    My Personal Website ---- Beginners Guide to Spyderco Collecting ---- Kiwimania ---- Spydiewiki
    Dead horses beaten, sacred cows tipped, chimeras hunted when time permits.
    WTC # 1458 - 1504 - 1508 - Never Forget, Never Forgive!

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    Spyderco Forum Registered User SpyderEdgeForever's Avatar
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    Quote Originally Posted by The Deacon View Post
    Interesting way to twist my post. Fact is, I've been an NRA member and strong supporter of the 2nd Amendment for over 50 years. I'm enough of a realist to know that getting all the various existing laws that infringe on the absolute right it confers to use is an impossible dream but I haven't given up that fight by any means.

    What I absolutely do not want to become involved in would the the wrong headed premise that knives (as opposed to swords and lances) are "arms" and thus covered by the 2nd Amendment. I also believe that making that claim leaves knives open to more regulation as "concealable weapons" rather than offering them protection from regulation.
    I'm with you on this, Deacon. By merely identifying a knife as a weapon, in the category with firearms, it opens knives up to more anti-knife legislation. Knives should be considered tools, and not classed with weapons such as guns. I mean, sure, someone could split hairs and say, "Well a gun is a tool, too, such as when you use it to hunt." But you're right. I can see how that could work against us knife owners. Man, how did it get to this point where we have to even discuss these issues, and feel threatened to carry our tools?

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