On Wednesday, April 1st, the United States Court of Appeals for the Fifth Circuit heard oral argument in our appeal of the District Court’s irrational decision in our Second Amendment challenge to the constitutionality of the Federal Switchblade Act (except the import ban). The judges had pointed questions for both sides. But, while they expressed concerns over the scope of the plaintiffs’ challenge and their standing to bring the case, the three judges were very skeptical of the government’s expansive reading of its authority to regulate. At one point the government suggested that it could even outright ban knives under the Second Amendment.
The argument started with the judges questioning whether Knife Rights and its co-plaintiffs should really be able to challenge the FSA, especially given how irregularly it is enforced in practice. At least one judge seemed concerned whether there was a real threat to their rights at play. He also questioned whether there was enough to justify a suit seeking to block enforcement of the entire law.
Plaintiffs promptly reminded the panel that the government has used selective enforcement of the FSA to create a larger deterrence effect over the knife industry. Specifically, the prosecution of Spyderco years ago resulted in an industry wide acknowledgment form requiring compliance with both Section 1242 and 1243. Plaintiffs also reminded the court of the government’s enforcement of the FSA against Knife Rights member Lumsden in 2020, in which the government still has his confiscated property.
While the judges spent most of their questioning of the plaintiffs focused on those two issues, the government seemed willing to concede both points during its argument. First, the government stated plainly that it has dropped its standing arguments in this case and agrees that the plaintiffs have standing for their challenge. Second, the government emphatically stated that it reserves the right and authority to enforce any part of the FSA.
“We have certainly not disavowed charging them,” the government attorney explained. “We think we could charge them. We think that, in the particular circumstances of this case, the plaintiffs have standing.”
If the court had any hesitation that the FSA might not be enforced in the future, this hesitation should have been entirely eliminated with the government’s stated position.
Those were the only points of agreement between the government and the plaintiffs, though, because the government took a very expansive view of its power to regulate knives. The government argued that there are three principles underpinning its authority to regulate switchblades.
First, it claimed that the government may regulate concealed and therefore inherently concealable weapons. Second, it claimed that the Second Amendment does not extend to weapons that are adapted for criminal misuse. Third, it claimed that restrictions such as those on the manner and mode of operation of weapons do not infringe on the Second Amendment right.
None of these concepts reflect the principles of the Second Amendment, and the judges seemed highly skeptical of those formulations. One judge asked whether the government could ban all knives. When the attorney responded that maybe it could, another judge registered considered skepticism over that claim.
That also led to several questions about the historical support for the government’s argument. The government declined to take a firm position on whether laws from the mid-to-late 19th Century should have the same weight in a Bruen analysis as those from the Founding. It was also unable to identify any state laws that banned the possession of arms from the Founding Era.
On rebuttal, Plaintiffs made clear that the government’s sweeping claims regarding historical arms regulations, were not only factually incorrect, but also outside the standard established in Heller and affirmed in Bruen. Heller already conducted the historical analysis for arms bans. If an arm is in common use for lawful purposes, then it cannot be banned. The government’s attempts to redo this historical analysis for “concealable weapons” or “weapons adapted for criminal misuse” are entirely irrelevant.
Beyond the merits, while the judges seem consistently skeptical of the government’s broad claims of authority, the judges also asked several times whether they should just remand the case back down to the lower court to reconsider the merits. Plaintiffs explained that there is no need to do so because the record before the court is fully fleshed out to enable the Court of Appeals to rendered a ruling on the merits.
The Court can take months to issue a decision; all we can do at this point is wait.
- You can listen to the oral argument in its entirety here. Audio only, no video and, I must warn you, without being able to view the reactions of the judges, a lot is lost in context. (0:48)
Knife Rights and its fellow plaintiffs were represented by Daniel L. Schmutter of Hartman & Winnicki, P.C. and John Dillon of Dillon Law Group sat Second Chair for plaintiffs.
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Since 2010 Knife Rights’ efforts have resulted in 58 bills & court decisions repealing knife bans & protecting knife owners in 36 states and over 200 cities and towns! Knife Rights is America’s grassroots knife owners’ organization; leading the fight to Rewrite Knife Law in America™ and forging a Sharper Future for all Americans™.