Knife Rights has filed its Appellants’ Reply Brief in our challenge to the constitutionality of the Federal Switchblade Act under the Second Amendment (except for the import ban). The Department of Justice’s embarrassingly absurd Response Brief laid itself wide open to attack, and attack we did, slicing and dicing, leaving its bloody carcass on the courthouse steps.

The DOJ almost entirely abandoned any opposition to Plaintiffs’ standing and also rejected the district court’s outrageous ruling that the FSA doesn’t serve as a “‘de facto prohibition on possession’ of switchblade knives.” The DOJ conceded that the FSA “generally prohibits the interstate sale of . . . switchblades altogether,” and therefore, “operates more like ‘a complete ban of’ one of the ‘most common ways to acquire switchblades.” They were just about there before they went off the rails…again.

The DOJ conceded switchblades are “arms,” but claimed they are not protected because they are “concealable.” Heller and Bruen both made clear that this doesn’t invalidate the constitutional right, otherwise Heller would have been decided differently. Nor does DOJ’s inane claim that switchblades are “uniquely adapted for criminal misuse,” withstand scrutiny. As the Reply Brief makes clear, even if “criminal misuse” were true (and it is not), that is not the question. Any “arm” may be criminally misused. The question, settled by Heller, is whether they are in common use by the law-abiding. Criminal misuse is not relevant, period.

First and foremost, the brief makes clear that under Heller and Bruen, if switchblades are arms “commonly used for lawful purposes,” which the DOJ does not contest, then the argument is over… they are protected under the Second Amendment and the FSA’s ban is unconstitutional. The remaining policy arguments offered by the DOJ are irrelevant noise that cannot be considered under Heller and Bruen.  

However, given the DOJ attempted to justify their position “by demonstrating that it is consistent with the Nation’s historical tradition of firearms regulation,” the Reply Brief annihilates their historical analogues. The DOJ failed to meet its burden because the few laws cited to by the DOJ to justify the FSA were a handful of statutes from the mid-to-late 1800s that regulated the manner of carry (specifically, the act of concealed carry) of knives and pistols. None of the laws relied on by the DOJ imposed broad prohibitions on acquisition, commerce, and possession of arms like the FSA. Simply put, these restrictions cannot justify the much broader and sweeping bans under the FSA.

The DOJ also attempted to justify the FSA by expanding “sensitive places” doctrine beyond recognition. The DOJ claimed that because certain “sensitive places” like a courthouse or a military base can be found within the vast amount of federal land and “Indian country” within which the FSA prohibits possession, any kind of facial challenge to the FSA fails. However, extrapolating a carry restriction from certain truly “sensitive places” like courthouses to one-third of the U.S. flops badly. Bruen warned against expanding “sensitive places” so broadly that the category “eviscerate[s]” the right, rejecting attempts to declare large swaths of territory, in that case the entirety of New York City, “sensitive” based on generalized characteristics. The DOJ’s attempt to make one-third of the country a “sensitive place” is insane.

The DOJ went even further in their policy arguments, attempting to justify the FSA through an effort to portray switchblades as comparable to machine guns and short-barreled shotguns, arms which are heavily regulated under the National Firearms Act. It doesn’t take a genius to understand that this argument also utterly bombs, as the Reply Brief makes very clear.

I strongly recommend reading the entire brief which ends up being a primer on the application of Second Amendment law after Heller, Bruen and Rahimi: KnifeRrights.org/fsaresponse

The next step in the process is oral argument.

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™.