Recent Second Amendment decisions by the Supreme Court of the United States and the Fifth Circuit Court of Appeals have resulted in the filing of Notices of Supplemental Authority under Rule 28(j) in all three of Knife Rights’ federal lawsuits challenging knife bans as unconstitutional under the Second Amendment. These are our challenges to California’s 2-inch and over ban on switchblades, Minnesota’s total ban on switchblades and the Federal Switchblade Act. Critically, the courts reaffirmed and clarified controlling Second Amendment precedents that apply in our cases. Rule 28(j) makes provision for calling the court’s attention to authorities that come to the party’s attention after the brief has been filed.
In United States v. Hemani, the Supreme Court ruled against the federal government’s attempt to broadly prohibit firearm possession by marijuana users. While that might seem far removed from our fight against knife restrictions, its unanimous decision was a huge victory that goes to the heart of our cases.
Hemani made it clear that while the government may use analogies in the historical-tradition analysis in Bruen’s “Step Two,” any analogy must be comparable in whom it burdens, why it burdens them, and how it does so. This supports our cases by doubling down on SCOTUS’ Step Two test and reminds the courts that attempts to stretch these boundaries to a breaking point with inappropriate analogies are not allowed. In none of our cases do the government’s historical analogs meet this requirement. They are all bridges too far, either in terms of timing, being too far removed from the founding era, and/or when it comes to “who,” “why” and “how.”
Hemani also reinforced the plain textual inquiry as being straightforward. It did not require a preliminary showing that the regulated arms were sufficiently common for self-defense, particularly suitable for lawful purposes, or otherwise deserving of constitutional protection before shifting the burden to the defendants to support their argument with applicable history from the founding era. This discredits the government’s attempts in our cases to apply additional unstated requirements in Step One that do not exist in the text of the Second Amendment.
If you appreciated Hemani, you will love the decision in Wolford v. Lopez. In Wolford, the Supreme Court ruled that Hawaii’s ban on carrying a gun onto publicly accessible private property without prior authorization violates the Second Amendment. The Court found the law was an unconstitutionally broad restriction on the right to bear arms. Most importantly, the decision clarified that courts shall not play games with the plain text reading of the Second Amendment. Step One focuses strictly on the plain text of the Second Amendment and if the regulated individual is part of “the people” and the arms in question are “implements used for offense or defense” the conduct is presumptively protected. Justice Alito writes, “at that stage, as we have explained, the question is simply whether a challenged law falls within the Second Amendment’s ‘plain text.’”
Then, further explaining the majority opinion, Justice Barrett reiterates that, “the disagreement is instead whether courts can smuggle additional limits, drawn from our regulatory tradition, into the plain-text stage of the inquiry. The answer is and always has been no” (emphasis added). Together, these slam the door on attempts to add additional conditions, qualifications, and restrictions, into the plain text analysis such as requiring switchblades to be commonly used for self-defense, or that weapons must be “suitable” for self-defense as part of the plain text analysis under Bruen. We have stated that these additional conditions do not exist—and the Supreme Court agrees.
The decision also makes clear that while self-defense is one use for “Arms,” that doesn’t define or limit use. The decision reiterates that “Arms” are “weapons customarily used for offensive or defensive purposes.” Moreover, the Court confirmed “Arms” “refers to implements used for offense or defense” (emphasis added). This reinforces that a knife is unquestionably an “Arm,” under the plain text and rejects the government’s repeated attempts to restrict the Second Amendment’s protections solely to Arms “commonly used for self-defense.”
In United States v. Comeaux, a three-judge panel of the Fifth Circuit Court of Appeals ruled that silencers (suppressors) are protected “Arms” under the Second Amendment. That creates a circuit split with the anti-2A Ninth Circuit. We prefer the Fifth’s take, and their reasoning involving history and what the Second Amendment covers, besides firearms themselves, supports our position on knives being “Arms” under the Second Amendment.
With a circuit split on this issue, odds are that SCOTUS will take up this issue. We believe they will take the Fifth’s side in accordance with their prior decisions and that would set a critical precedent that will be important in any of our Second Amendment knife ban cases going forward.