Wisconsin Appeals Court Upholds Second Amendment Argument in Switchblade Possession Case

While AB 142 will hopefully settle the issue for good in Wisconsin, this decision is part of an evolving body of law protecting knife ownership and carry that was summarized in the first detailed scholarly analysis of knives and the Second Amendment published in 2013 and authored by noted Second Amendment scholars Dave Kopel, Clayton Cramer and Joe Olson and referenced in the decision. Read “Knives and the Second Amendment” here:

Some enlightening quotes from the Court of Appeals decision:

“Although the Heller Court emphasized that handguns are frequently used for self-defense, we do not think Heller can be read to create different levels of protection for different types of arms that fall under the Second Amendment, based on their popularity. In addition, it is not particularly surprising that handguns are more prevalent than switchblades, given that switchblades were banned or severely restricted in many states, including Wisconsin, beginning in the late 1950s and early 1960s.”

A key point is that the court also rejected the state’s intellectually bankrupt argument that only a subset of knives was banned and that alternative knives were available, “Herrmann could have easily used a non- prohibited weapon for his protection. The statutory ban on switchblade knives does not unreasonably impair Herrmann’s right to keep and bear arms.” The Second Amendment, supported by Heller and other decisions, doesn’t differentiate between types of arms. The court held, “The State…failed, to the extent necessary after Heller, to show that Herrmann had reasonable alternative means to exercise his Second Amendment right to bear arms.”

The court also noted some advantages switchblades have over guns, “For safety reasons people with children may not want guns around the house. People with limited financial resources who may not be able to afford a proper gun likely would be able to afford an effective $10 automatic knife. Finally, for people who are excluded from lawful gun ownership, an automatic knife may be the most effective arm available.”

“The State argues that [the switchblade ban] serves an important governmental objective – namely, protecting the public from the danger of potentially lethal surprise attacks posed by individuals using switchblade knives. However, the State cites no evidence to establish that this danger actually exists to any significant degree. Again, the State has the burden to establish that [the switchblade ban] satisfies intermediate scrutiny, and it must do so by showing the existence of real, not merely conjectural, harm… Thus, on the record before us, we are not convinced that [the switchblade ban] serves an important governmental objective.”