Massachusetts court stumped as to whether Second Amendment protects switchblades

BOSTON (CN) — A ban on carrying switchblades violates the Second Amendment, a defendant told the Massachusetts Supreme Court Monday, but the justices seemed puzzled over how to apply the U.S. Supreme Court’s most recent Second Amendment decision and inclined to remand the case to develop the record.

The U.S. Supreme Court held last year in New York State Rifle & Pistol Association Inc. v Bruen that a weapons restriction is unconstitutional if it isn’t “consistent with the nation's historical tradition.'

“I don’t know what national historic tradition means,” complained Justice David Lowy Monday. “Do we consider regulations after 1868, when the Fourteenth Amendment was passed?”

Lowy also wondered if he should focus on state history or national history. “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?” he asked. “I’m not sure how folks in Montana might have felt after the Civil War.”

It doesn’t matter, asserted public defender Kaitlyn Gerber, because “no party has found any regulation whatsoever prior to 1950 that is akin to an absolute ban” on switchblades.

Massachusetts and many other states banned switchblades in the late 1950s following a public outcry about knife violence sparked by popular entertainments such as West Side Story and 12 Angry Men. The concern eventually subsided, and since 2008 some 19 states have repealed their switchblade laws.

“Does West Side Story … fit into the Bruen analysis?” asked Justice Frank Gaziano.

“It’s a bit tangential,” Gerber answered.

“I don’t know where it fits in legally. I don’t know if it’s relevant,” Gaziano wondered. “And then do we get into the reasons for the statute, which are not all that pleasant in their ethnic and racial components?”

Laws against such weapons have a long history of being racially motivated, according to an amicus brief filed by the state’s criminal defense lawyers’ association and a local Korean martial arts group.

Since the underlying case was decided before Bruen, Chief Justice Kimberly Budd suggested "there be a remand to give the commonwealth an opportunity to show” how the ban fits into the historical tradition. It was a suggestion to which the other justices seemed amenable, in part because they worried that the U.S. Supreme Court could take the case and fault their historical analysis.

“If this case were to go up,” Gaziano mused, “then the question would be, why did you look at the 1950s, when you should have stuck to the tri-cornered hats?”

Instead of remand, Assistant District Attorney Elisabeth Martino urged the court to throw the case out altogether on the grounds that switchblades aren’t “arms” under the Second Amendment. But she made little headway.

A weapon isn’t an “arm” unless it’s commonly used for self-defense today, she claimed, and switchblades aren’t. “But that’s because you banned them,” Gaziano dryly pointed out.

Justice Serge Georges noted that there was no evidence in the record as to how common it is for switchblades to be used for self-defense, which was another good reason for remand.

Martino also argued that a handgun can be used as a deterrent — “stop or I’ll shoot” — whereas switchblades are concealed and aren’t obviously lethal until they’re used.

But “under your logic it would be okay to ban concealable handguns, and everyone would have to carry a long gun or a rifle for self-defense,” Gaziano objected. “I just don’t get your distinction.”

Georges also argued that switchblades are more useful for self-defense than traditional folding knives. “You’re being attacked. Do you want the knife to defend yourself that you’re already in the midst of panic and angst and you’ve got to try to figure out how to unfold it, or do you want the knife that you can hit a button and it’ll be deployed?”

The case at issue involves a defendant named David Canjura who was stopped by police in downtown Boston after an argument with his girlfriend. Canjura had a switchblade on him at the time, although he never took it out or threatened to use it.

Massachusetts law, which carries a jail term of up to five years, bans a wide variety of other weapons including stilettos, nunchucks, brass knuckles, daggers, kung fu sticks, ninja throwing stars and manrikigusari. But the court made clear that it would consider only switchblades and none of the more exotic weapons.

In August of this year, the Ninth Circuit applied Bruen and struck down Hawaii’s ban on butterfly knives. Massachusetts is one of 16 states that have petitioned that court for a reconsideration.

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