Knife Laws on the Chopping Block

With a recent Broadway revival, an award-winning movie, and a new Leonard Bernstein bio-pic featuring excerpts from its score, the musical West Side Story has been having a “moment” for the past several years. So, too, have switchblades.

The musical, a loose adaptation of Shakespeare’s Romeo and Juliet, revolves around the rivalry of two street gangs, the Sharks and the Jets. For the most part, these gangs try to best each other through pirouettes and jetés, but then several members pull out their switchblades. By the end of the scene, two gang leaders have been fatally stabbed, and the tragic end to the star-crossed lovers’ story is set in motion.

Legislative lore has it that West Side Story, which opened on Broadway in 1957 and in movie theaters in 1961, prompted state legislatures around the country to ban the possession and use of switchblades. In reality, the trend was already underway. The first statewide ban was adopted in New York in 1954 and other states soon followed.

Massachusetts’s law was enacted several weeks before West Side Story premiered. That law bars possession or use of “a switch knife, or any knife having an automatic spring release device by which the blade is released from the handle, having a blade of over one and one-half inches.” As explained by one Massachusetts court, the legislature’s goal was “to outlaw the carrying of those knives which are primarily designed for stabbing human beings.” At one time, a significant majority of states regulated possession of switchblades. 

However, advocacy groups like Knife Rights, founded in 2006, have focused on securing the repeal of these state laws, with considerable success. In recent years, legislatures in Alaska, Arkansas, Indiana, Kansas, and Wisconsin, among others, have relaxed their switchblade bans. Today, only 18 states plus the District of Columbia ban possession or use of switchblades.

Success in the courts has come more slowly, but it may be accelerating. For example, a recent decision from the U.S. Court of Appeals for the Ninth Circuit struck down Hawaii’s ban on “butterfly knives” as violating the Second Amendment. A butterfly knife is a type of pocketknife, distinct from a switchblade and lacking a spring-loaded mechanism. However, the federal appellate court adopted broad language that could call into question all bans on the wide variety of bladed weapons. Alarmed by the ruling’s implications, 16 state attorneys general have joined a motion for rehearing en banc.

Meanwhile, a challenge to the Massachusetts switchblade ban, Massachusetts v. Canjura, is currently pending before the state’s highest court. The Massachusetts Constitution makes clear that the right to bear arms is for the purpose of collective action, not individual self-defense. Yet after the U.S. Supreme Court’s rulings in McDonald v. Chicago and New York State Rifle & Pistol Association v. Bruen holding that many state restrictions on firearms violate the Second Amendment, knife enthusiasts have redoubled their efforts to strike down the switchblade restrictions as inconsistent with the federal constitutional. Notably, some commentators have viewed such knife litigation as an indirect route to further expand gun rights.

Under Bruen, the party challenging a restriction must first establish that the subject of regulation constitutes a protected “arm” under the Second Amendment. If this first prong is met, the burden shifts to the government. The regulation will pass Second Amendment muster only if the government demonstrates that it is “consistent with the nation’s historical tradition” of restricting weapons between 1787 and 1868, i.e., from the founding era to the Reconstruction.

Federal judges are already struggling to put this new test into practice. State courts evaluating the constitutionality of weapons restrictions face the same challenges, compounded by the nuances of federalism.

In the pending Massachusetts case, David Canjura was charged with a criminal violation of the state’s switchblade ban. Arrested in the course of a domestic dispute, Canjura was found to be carrying a switchblade. Canjura and his able public defenders challenged the constitutionality of the Massachusetts ban, garnering amicus support from Knife Rights, the Massachusetts Association of Criminal Defense Lawyers, and a Taekwondo school that utilizes bladed weapons in its training and practice. Acknowledging the case’s complexities, the Massachusetts attorney general filed an amicus brief on behalf of neither party, seeking a remand in light of Bruen. The state appeared separately to defend the statute under the Bruen test, while also joining in the request for a remand.

On the question of whether switchblades constitute “arms” for purposes of the Second Amendment, the state argued that Canjura had not shouldered his burden, since prior U.S. Supreme Court rulings had solely concerned firearms, and switchblades had never been considered “arms” in Massachusetts. Indeed, at least one state court in Indiana has found that switchblades fall outside of the Second Amendment’s scope. However, if switchblades were to be considered “arms” for Second Amendment purposes, the state argued that analogous regulations from the 19th century, along with federal and state restrictions dating from the 1950s, were sufficient to meet Bruen’s “historical tradition” standard.

At oral argument in December, the Massachusetts justices were perplexed by Bruen’s requirements, and reluctant to fully turn over the state’s weapon regulations to the dictates of a federal judiciary insensitive to the state’s own historic values. The Massachusetts high court is charged with construing the oldest functioning constitution in the world, a legal document with a foundational place in the nation’s history. The justices’ questions suggested they weren’t convinced they should veer away from the state’s long-standing constitutional law — and historical approach to weapons — just because far-flung states like Wyoming or Montana approached switchblades differently centuries ago. In such a vast and diverse country, what constitutes the “nation’s historical tradition” under Bruen?

 Justice David Lowy observed, “I don’t know what national historic tradition means. . . . Does it matter if folks in Wyoming in 1867 might have had a little different view of whether you needed to have whatever the closest thing to a switchblade was?” Justice Frank Gaziano wondered whether the analysis should consider the possibility that racist stereotypes motivated the 1950s-era bans. Justice Serge Georges wanted to know “whether switchblades are in common use for self-defense.” That information could be mustered on a remand, a suggestion supported by Chief Justice Kimberly Budd. Throwing up his hands, Graziano asked in jest, “Does West Side Story . . . fit into the Bruen analysis?”

As other courts have already found, Bruen’s emphasis on centuries-old analogues frustrates state legislatures’ efforts to respond as both societies and weapons develop. It seems likely that the Massachusetts switchblade case will be remanded for the time being for further briefing on the issues raised by the justices. Meanwhile, state courts can only hope that “Something’s Coming” soon from the U.S. Supreme Court to spell out a more workable framework for the right to bear arms.

Martha F. Davis is a university distinguished professor at Northeastern University School of Law.