Thursday, March 23, 2023

CA: Knife Rights Files Second Amendment Lawsuit: Switchblade Ban Violates Second Amendment

Flylock switchblade made 1918 to 1929.  3 3/8 inches long, closed.

Knife Rights has launched a lawsuit against the state of California, claiming California law (Cal. Penal Code §§ 17235, 21510, and 21590),  which bans the possession, carry, sale, loans, transfers and gifts of automatically opening knives with blades of two inches or more, violates the Second Amendment of the Bill of Rights.

This correspondent has expected such lawsuits since the unanimous decision by the United States Supreme Court in Caetano. The decision, made an unequivocal statement


The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v.Chicago, 561 U. S. 742, 750 (2010). In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

All arms clearly includes automatically opening knives, such as "switchblades", or other common designs. From the complaint

There can be no question that knives are “arms” protected under the plain text of the Second Amendment because the “Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111at2132 (2021) (quoting Heller, 554 U.S. at 582). And indeed, the Supreme Court made clear in Bruen that the Second and Fourteenth Amendments protect the right to acquire, possess, and carry arms for self-defense and all other lawful purposes—inside and outside the home.

The Bruen decision, published on June 22, 2023, set forward a clear method to decide Second Amendment cases.  As with other rights in the Bill of Rights, no means-ends arguments are to be used. If the actions in dispute are implicated by the text of the Second Amendment, it becomes the burden of the State to show, with historical records, that such laws were longstanding and accepted at the time of the ratification of the Second Amendment, or to a lesser effect, what was in place at the ratification of the Fourteenth Amendment. From Bruen p. 15:  

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.

The Supreme Court has made clear: History near the time of ratification (1791) is the most important. History near the time of ratification of the Fourteenth Amendment (1868) has much less importance. History after 1900 is not to be considered at all.

The California ban only dates to 1957. It appears to have been passed as part of the media frenzy against switchblade knives in the 1950s. 

The logic in the Knife Rights lawsuit appears clear and unassailable:

  • Switchblade knives are in common use for legitimate purposes.
  • Switchblade knives are arms protected by the Second Amendment.
  • Therefore, the law burdens conduct protected by the Second amendment.
  • California law bans possession of switchblade knives.
  • The law only has a history back to 1957.
  • There is no longstanding, accepted history of banning switchblade knives from the 1791 era or the 1868 era.
  • Therefore, the California ban violates rights protected by the Second Amendment and is unconstitutional.


Those who desire a disarmed population are not concerned with the Bill of Rights. Their world view is based on means-ends and the preservation of power.

This correspondent sees these likely attacks against the logic of the complaint:

1. They will claim switchblade knives are "dangerous".

2. They will claim switchblade knives are "unusual". 

3. They will claim, therefore, switchblade knives are not arms protected by the Second Amendment. 

4. They will use "means-ends" arguments, claiming the state has a rational reason to ban switchblade knives. 

In a previous AmmoLand article, a Pennsylvania judge claimed switchblade knives did not serve a legitimate common purpose.  

Appellant was free to possess an instrument with a common lawful purpose and use that instrument for the lawful purpose of self-defense. Instead, Appellant possessed a switchblade. While it is conceivable that Appellant possessed a switchblade for self-defense, that is not the switchblade’s common purpose. Hitchon, 549 A.2d at 946; Ashford, 397 A.2d at 423. Accordingly, we reject Appellant’s constitutional claim; he is entitled to no relief. Judgment of sentence affirmed.

The Pennsylvania judge's decision did not create precedent.  It shows the mindset of judges who want to ban weapons and do not respect the Second Amendment. 


©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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