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WI Switchblade Appeals Court Decision

Applying the Second Amendment to knives as arms and the groundbreaking Heller U.S. Supreme Court decision, the Wisconsin Court of Appeals reversed a lower court decision that it was illegal for someone to possess a switchblade (automatic) knife in their home. The court concluded that the Second Amendment protects knives as well as guns, one of Knife Rights' foundational principles.

As such, this decision, albeit narrow as was required by Wisconsin law, held that at least with regards to switchblades at home, Wisconsin's ban is unconstitutional. Knife Rights believes such bans are entirely unconstitutional. Having said that, Knife Rights Wisconsin Knife Law Reform bill, AB 142, would remove this prohibition altogether, as well as enact Knife Law Preemption, resolving the issue entirely. AB 142 has passed the House and awaits a vote in the Senate.

The case arose when Cory Herrmann, the defendant, was injured in his home. Showing his switchblade to a friend, Herrmann dropped the knife and cut his femoral artery. After 911 was called, officers responding to the scene seized the switchblade and subsequently Herrmann was charged with illegal possession.

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. Read "Knives and the Second Amendment" here: http://www.kniferights.org/Knives-an...-Amendment.pdf

Some enlightening quotes from the Court of Appeals decision:

You can read the court's decision here: http://www.wicourts.gov/ca/opinion/D...f&seqNo=155961

"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."

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Replies to This Discussion

FeaturedPermalink Reply by dead_left_knife_guy on November 27, 2015 at 9:31

Doug,

Thank you for posting this -- it's good to know what's going on right next door, & that the "knife as weapon" approach is gaining traction, from the perspective of the 2nd Amendment.

However, arguing for knives to be protected under the 2nd Amendment is really quite counterproductive in the larger scheme of things.

Culturally speaking, pushing for knife protections under the 2nd Amendment is exactly the opposite of what all of us who love knives want -- more acceptance of the carry & use of knives in contemporary society. Legalizing something doesn't mean that it's socially acceptable. In those European countries where prostitution is legal, prostitutes & their clients are far from revered & heralded as champions of individual rights.

More relevant to our culture, alcohol is legal for adults, but that hardly makes alcohol consumption acceptable in most situations. Maybe a better, more recent example is the legalization of marijuana in certain places in the U.S. -- if you're not already cool with hanging around with people who are baked out of their minds, you're not going to be any more cool with it when weed becomes legal.

Maybe you'll be even less cool with it, since more people will be getting high legally. And with increased availability, people doing things while high that are illegal, such as driving while impaired or under the influence, will become more common.

Legalizing switchblades means that more switchblades will be produced, more models will be made & ultimately there will be more switchblades at lower prices, & a lot more people will have them & use them in all sorts of situations -- including situations like illegal assaults & terroristic threats.

Meanwhile, the knives most commonly used as weapons are kitchen knives -- BECAUSE THEY ARE THE MOST AVAILABLE KNIVES IN THE U.S. Kitchen knives, however, remain largely legal in the U.S. -- BECAUSE THEY ARE VIEWED AS CULINARY TOOLS, NOT WEAPONS.

Here in Minnesota, certain items are considered by statute to be dangerous weapons per se, & those items are the most highly regulated items in the state. However, other items USED AS weapons are also regulated, which is to say illegal under the criminal laws of Minnesota, to which self defense is an affirmative defense, & then only in certain situations.

Baseball bats & hammers are not manufactured (most of the time) as weapons, but they certainly be used as such. Should we seek their protection under the 2nd Amendment too? Would that make baseball bats & hammers more socially acceptable?

On the flipside, if any "arm" can be protected under the 2nd Amendment, are you suggesting that everyone should have access to any weapon? Should ten year olds be allowed to carry a pistol at school for protection? Should all adults in the U.S. have access to RPG's (even those people on terrorist watch lists)? If the answer to these questions is no, then you've got a pretty good idea as to why knives created as weapons can be justifiably regulated.

Not all switchblades are made as weapons. Knives designed as weapons are actually only a small percentage of the knives available in America today. Seeking protection of knives under the 2nd Amendment will not only fail in many instances, it will also get the general public thinking of non-weapon knives as weapons & invite greater regulation. And this will only make the non-acceptance of knives in contemporary society even stronger.

Take care,

DLKG

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Permalink Reply by Jan Carter on November 27, 2015 at 18:53

THIS IS HUGE

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Permalink Reply by Jan Carter on November 27, 2015 at 19:39

DLKG,

I, on the other hand am a proponent of getting knives seen as part of the 2nd Amendment.

Too many other countries have gone the way of thinking that the government knows better than the people and have opted to protect them by taking away the right to protect themselves. Some of these countries are now litigating the kitchen cutlery because they found out what we already know. Trust me next will be screw drivers, LEO's tell me it is the item used against them most often. Doug and his group can continue to fight for us to have the right to have our knives. It is up to us, as the collectors, to be out there spreading the word that they are not weapons but tools. We do this in many ways.

For me it is understand the next generation, that is 10-15 right now is where we need to be reaching. The 25-45 range had already been conditioned that it is a weapon. Bringing it the younger generation means everything from introducing them at show, being at the hammer ins and showing them how a knife can be made, much the same as other tools with some heat and an anvil. Camping trips, fishing trips and most outdoor activities are a great venue for showing that they are tools.

So for me it is about getting involved and proving the value of the tool but having the protection that keeps me from having to hide my addiction.

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FeaturedPermalink Reply by dead_left_knife_guy on November 28, 2015 at 0:36

Jan,

Pushing for knives to be considered weapons will only erode the "knives as tools" approach, in the cultural sense.

From a legal stand-point, unlike the UK, guns are still legal in the US. There is no way that knives will be as reviled in the US as in the UK while AK's, AR's, & Glocks are so common & so available. Switchblades, dirks, & gravity knives aside, pretty much all other knives will remain legal as long as pistols are legal. And it was the Obama administration that stopped Customs from considering assisted openers to be covered under the switchblade act. And off the top of my head, I can't help but think of Navajas, which were invented to get around a Spanish bans on swords in something like the 1600's or 1700's -- I only mention this because such bans are hardly new. The sky is not falling when it comes to knife legality in the US.

On the other hand, if subsequent courts change course on what the 2nd Amendment means & to whom it applies, & finds something to the effect that anything made to be a weapon (all pistols, for example) is subject to restriction, then all knives, if considered weapons per se, would be subject to regulation to which they had not previously been subject. And if those trying to protect their rights to own knives have been arguing they must be protected because they are weapons, there will be even less cultural sympathy. It's the proverbial shooting oneself in the foot.

There has never really been any argument that I've heard that has argued the definition of "arms" in the 2nd Amendment to be anything other than weapons. But even then, weapons were seen as something to be protected, while tools such as hammers, nails, drills, files, & axes were of no more need of protection than were shoes & hats.

So, in the long view, keeping knives a bit less defined as weapons actually can serve knife owners, users, enthusiasts much better in the end. Because bans such as those that are being pursued in the UK against knives will not be pursued in the US as long as we have as many firearms as we do. (And I have to mention that screwdrivers used as weapons are already illegal, just as are baseball bats, knives, & guns when used as weapons -- it's their use as weapons that is illegal.)

Knife Rights & AKTI have done a great deal of good work in getting preemption laws in place & switchblade bans overturned, but this work has been done in states where public sentiment tends to lean toward gun rights, or at least where there are Republican governors in office, & in the wake of the current gun debates. It's brilliant to push such an agenda through in this climate while it's so volatile.

Unfortunately, when all of the dust settles, tying knives to guns will mean wherever guns end up, knives could be there too. I'm not feeling very optimistic as to where this will leave knives, especially with prosecutors like Cyrus Vance, Jr. around. No knives were mentioned in the Constitution when it was ratified, there's really no need to get all knives dragged into it now.

And there's the fact that switchblades were banned because they were perceived to be largely used by street gangs as weapons, many of the gangs being non-white. There was a lot of fear around weapons used by these gangs, but particularly the switchblade. These lawmakers were reacting to cultural sentiment, & my guess is that there are a lot of parallels between the sentiment toward youth & gangs with switchblades back then and the sentiment toward youth & gangs with guns now.

To run with another analogy, if your addiction is to something more similar to coffee or soda than to cocaine or heroin (or even marijuana), I think you've got a better chance of it remaining legal now & into the future.

I'm sorry, I've written a lot on this topic just now, & I'm sure I will continue to write quite long responses in the future. But this is one case where I truly am trying to persuade. Not just you, Jan, but everyone involved, everyone that cares enough to read about this topic.

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Permalink Reply by Jan Carter on November 28, 2015 at 11:36

DLKG,

LOL, seems we have been here before. Although we appear to have a number of difference of opinions, I am glad you continue to have discussions with us. At least we can agree a common goal is the ability to possess and carry our sharp objects

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FeaturedPermalink Reply by dead_left_knife_guy on November 29, 2015 at 18:25

Yes, Jan, that is our common goal. Which is why I want to address another point you made. You said you would like knives protected as weapons under the 2nd Amendment, but that it was up to collectors to teach the youth of today that knives are primarily tools & not weapons.

If the thing at issue was marijuana & not knives, that argument sounds like saying marijuana should be legal for recreational purposes, but the group advocating for legalization saying it was up to marijuana users to teach others not to use it to get high. Basically, no one's going to believe that.

It's similar with knives. A lot of people think of knives categorically as weapons first (from which, ironically, kitchen cutlery is almost automatically exempt). Those people are also prone to thinking of people with knives as somehow more dangerous, or at least that knife collectors are weapon collectors. In some cases, they're spot on, but in many, & hopefully most cases, they're not. And any knife can be used as a weapon -- but pretty much any tool can be used as a weapon.

However, in order to get all knives protected under the 2nd Amendment, they're all going to have to be classified as weapons, or "arms". protected under the 2nd Amendment, they're all going to have to be classified as weapons, or "arms". This legal classification will only expand the number of people who think of knives as weapons first & foremost, & solidify it in the minds of those who already think of knives as weapons.

Which could lead to an incredibly ironic outcome: knife regulation could restrict knife carry further & further, unless the person says specifically that they're carrying the knife to use as a weapon (& claims a 2nd Amendment defense, & pursues this through expensive & time consuming litigation). There's actually a case involving kids that were out past curfew in order to protest the curfew, & because their 1st Amendment rights trumped local ordinance, their prosecution was unconstitutional.

I'm drawing my example from this case as a parallel. Someone carrying a knife used for work might not be protected from restrictions on knives, while someone carrying a knife with the express intent of using it against another person would be protected because they were exercising their 2nd Amendment rights. And many people with criminal intent would know well enough to exploit this loophole. So in such a case, criminals might benefit significantly, while the working joe or jane might not benefit at all.

Like I said, I know that I'm prone to long responses, but I hope people will read & at least think about these points.

Thank you, Jan, for appreciating differences of opinion & responding accordingly -- I've been on plenty of other forums where a very common response to disagreement was basically to stomp all over those with whom they disagreed, name calling included (many responses hardly fit for an "intelligent discussion"). You run a good forum here.

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Permalink Reply by Jan Carter on November 29, 2015 at 19:31

DLKG,

Thank you! Many times I hear from folks that controversy sells and iKC doesn't have too much of the name slinging. I always tell the we are designed this way. I love to discuss the differences we all have about our hobby, I just like it to be done with respect. I like to hear that we are accomplishing that

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Permalink Reply by Stephen L. Corley on November 30, 2015 at 19:47

Maybe I'm being a jerk about this, but if he hadn't been carelessly showing off with his knife, he wouldn't have gotten cut. To quote the Spider Man movie "With great power comes great responsibility." Firearms, knives, tasers and other tools of self defense are not toys and should not be used in that manner.