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By Doug Ritter

Maryland Attorney General Brian Frosh has acknowledged in a brief to the United States Court of Appeals for the Fourth Circuit that knives are “arms” covered by the Second Amendment. Unfortunately for him, he tried to use a ban on Bowie knives from the 1800s as an argument that Maryland’s ban on “assault weapons” is legal. It’s an argument that just doesn’t cut it.

As background, when the U.S. Supreme Court recently issued its Bruen decision upholding the right to carry firearms and setting strict scrutiny as the test, it sent back to the Appeals Courts a number of cases that were appeals in a variety of gun ban cases. The courts were instructed to review the various prohibitions’ constitutionality in light of the Justices’ decision.

One such case was Bianchi v. Frosh in Maryland opposing the state’s “assault weapons” ban.

The Fourth Circuit asked the parties to brief the case in light of Bruen. The basic argument from Second Amendment supporters in their briefs was that Bianchi could not survive strict scrutiny. There are millions of so-called assault weapons as defined by Maryland’s ban in common use by law-abiding citizens for self-defense, and thus they cannot be considered “dangerous and unusual weapons” that are “not in common use.”

One argument that Bruen allows to accept a ban on modern “arms” is if there were analogous bans at the time the Second Amendment was passed, or which have been historically enacted in the 18th or 19th centuries and which survive to this day. Frost’s argument that historical bans on Bowie Knives are analogous and thus justify modern bans on assault weapons fails to meet Bruen’s test.

Second Amendment scholar David Kopel, the author with Clayton Cramer and Joe Olson of the legal review article Knives and the Second Amendment, just posted his analysis of “The legal history of bans on firearms and Bowie knives before 1900” which can be read in full on The Volokh Conspiracy.

By reviewing this history, it’s possible to determine if the Bowie knife’s legal history should have any impact on Second Amendment cases after Bruen. A companion to that article is, “Bowie knife statutes 1837-1899,” which describes and analyzes nineteenth century state statutes on Bowie knives.

Kopel notes, “Whatever 19th century handgun laws teach about permissible limits on the right to arms, the Bowie knife laws go no further. Because Bowie knives are so often in pari materia (of the same matter) with 19th-century handgun regulations that they add little if anything to the very thin base of historical precedents for prohibitions on common arms.

The legal history of Bowie knives reinforces the U.S. Supreme Court’s history-based holdings about permissible handgun regulation. Bowie knives were not some extraordinary category for which regulation was more severe than handgun control was typical for handgun control.”

Thus, the Maryland AG’s argument citing a Bowie Knife ban fails to cut it, big time, but we appreciate his acknowledgment that knives are “arms” under the Second Amendment. And, our sincere thanks to Kopel for his scholarship.

 

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™. Knife Rights efforts have resulted in 40 bills enacted repealing knife bans in 26 states and over 150 cities and towns since 2010.

 

Doug Ritter is the Chairman and CEO of Knife Rights. This article was originally published at kniferights.org and is reprinted here with permission.

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65 COMMENTS

    • ‘Desperation is a stinky cologne.’

      Maryland has been clinging to outdated legal precedent and tissue thin legal arguments for it’s gun laws for years. They know they’re running out of excuses so they’re mostly just trying to keep their courts packed with far left judges.

      • In a way they are worse than NY in terms of legal challenges. Hoping to see DelMarVa with at least Pennsylvania level gun laws this decade (Virginia isn’t that bad) and we hope to beat both.

    • “…rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual.” – Thomas Jefferson

      Ref. https://founders.archives.gov/documents/Jefferson/03-14-02-0191

      It is amazing how many of our government ‘leaders’ (from all 3 branches!) have no understanding of that fundamental truth. If a law is inconsistent with that principle, the law is unjust. Period.

  2. A Bowie style blade is a formidable weapon. It’s also very good general purpose field knife. If you don’t have a good one, you own two, too few.

    • I have a Bowie, it’s nice, it’s dangerous, but it’s heavy. I prefer my USMC issue Kabar (circa 1967), light, holds a better edge and it’s easier for EDC as a “concealed weapon” boot knife along with the 10mm.

        • Got more than one, Brandon can’t find his ass with both hands and his DOJ enforcement thugs are too busy hunting down those “terrorist” parents at the local school board meetings, not too worried…

      • Madd, you do know your Kabar is a modified Bowie. I was Airborne and almost all of us carried a USMC Kabar. Hope you don’t mind us borrowing. Of course, we had to buy our own.

        • Not a problem, we borrowed your fly boys for medi-vacs from time to time in Vietnam when ours were busy elsewhere, the resemblance is noticeable on a slightly smaller scale, my “bowie” is German made with custom deer antler handle and can be used to stab, slice or club just too heavy for all day carry, the Kabar is a perfect all-around knife. Could not have cost that much back in the day, I just bought one with a serrated blade for $129.00 put my original in a case next to my Montagnard crossbow and other service-related stuff. The new edition does not quite have the feel of the old but if I lose it I won’t feel near as bad.

        • “I was Airborne and almost all of us carried a USMC Kabar.”

          My dad gave me his Kabar he carried when he flew in ‘Nam. The handle is a series of stacked thick leather ‘discs’ with a black parkerized blade, and the sheath has a small sharpening stone on the outside.

          Is that similar to the blade you were issued?

      • concealed knives over ??? inches are illegal in my state. Can’t recall the requirement for illegal concealed blade length though. I’m sure a Bowie qualifies though.

        • FL concealed carry permit allows for any concealed weapon not just firearms. You can carry any folding knife up to 4″ in length concealed (open or closed) without a permit and any fixed blade (including a Bowie) exposed without a permit. The only blades that are not permitted are “cane knives” and other deceptive devices, ballistic/assisted opening knives as well as non-metalic blades that can defeat a metal detector.

        • so why the restriction on switchblades?…in the age of the AR-15, and one where many carry a gun…does it make any sense?

        • Don’t make the rules, just passing along information. I would question why disguised blades like cane knives, person who needs a cane might find that useful.

  3. Original Gun Control was race based. Perhaps for Constitutionalists that is why Gun Control, Knife Control stinks today like it did way back then.

    • Some knife bans were definitely racist in origin, e.g. switch blades, butterfly knives and the like. But the Bowie followed a different trajectory. It was banned because it was used fa too often in (illegal) duels (more than a couple of which involved Mr. Bowie) and bar brawls. By banning the knife it was thought that the death toll of such altercations would be reduced.

  5. so the ban on a weapon created by a freedom fighter in the 1800s who died in a battle in another country is their “precedent” from the founding era?

  6. My favorite scene from Crocodile Dundee…”THAT’S a knife!”. Look at that evil bastard in Idaho. SBD. It’s no wonder the Maryland dim fudds wanna ban knives. Raciss as he!! Now I gotta a yen for a new knife. And they’re on sale.

  7. I live in Texas and carry a Buck 120 custom with a 5160 blade. Up until a few years ago “Bowie” knives were illegal to carry in Texas. Go figure.

  8. Its not about it being an idiot making this type of thing happen. Its about setting precedent that can get through the federal court system.

    There is a drive on by anti-gun to try to use 19th century ‘arms’ regulation argument as historical precedents to justify modern-day gun control laws. If they can get a bowie knife ban through the federal courts as ‘arms’ they will have set precedent for applying modern gun control in the same context as ‘arms’.

    This happened before years ago, them being allowed to use the 19th century ‘arms’ regulation argument in the courts and the courts buying it with their interest balancing tests. It caused a whole bunch of unconstitutional gun control and established ‘May Issue’ as a standard. They are doing wash-rinse-repeat trying to start all over again as a means to put a crack in Bruen.

    Anyway, Mark Smith did a video on it…

    https://www.youtube.com/watch?v=Q7LuzwfzhJQ

    • So the anti’s are willing to risk burning every single other enumerated rights for the chance to weaken the 2A even just a little.

  9. Oh phooey. Maryland just banned the Bowie knife because it was a from down South.
    .
    Weapons in common use.
    No sir, dont like that not one bit. It wont be long before gunms are ray gunms and only the military will have them and it wont pass strict scrutiny because they are not in common use.
    How about a Supreme Court declaration, The Right To Bear Arms Shall Not Be Infringed.
    Fck your common use strict scrutiny sht.
    But Nope,, judges were lawyers and lawyers are word twisters and word twisters always leave an out to screw you with it later.

    • I dunno, possum…ray guns may come into common use more quickly than anyone realizes. I’ll bet you dollars to doughnuts that Debbie W. is already working on one.

    • But Maryland IS part of the South. The whole state is south of the Mason-Dixon Line. In fact, the whole northern border of the state *IS* the Mason-Dixon Line. It’s all those damnyankee carpetbaggers moving in that have polluted the state’s culture!

      (I am a native Marylander but wouldn’t move back there now for love or money!)

    • Maryland is a southern state, Lincoln seized a number of prominent Maryland state legislators in the lead up to the war to prevent them from voting for secession, and then suspended the writ of habeus corpus to keep them in a military prison during the war. He also sent federal troops to seize a major rail terminal just west of Baltimore to keep secessionists from seizing it themselves and disrupting Union supply routes.

      • Maryland is a southern state,

        Yep, Mason-Dixon Line (dividing Northern and Southern States) runs along Maryland and Pennsylvania State line.

    • Xenophobia driven weapon bans never stopped. Look at all the bans on nunchaku (an exotic variant of flail), and “samurai swords” (UK was even retarded enough to ban all “curved swords”. Yes, that ban does include replicas of Napoleonic sabers.).

  10. I always find it amusing when someone’s defense for a current stupid regulation is a past stupid regulation.

    “Well, they were dumb in the olden days so I should be dumb now.”

  11. Maryland should have watched the MSNBC special on Colonial America before and after 2A was written.

    IN FACT: There were numerous anti-gun laws on the books in Colonial America. Just a few were bans on carrying firearms both openly and concealed in some of the major cities.

    There were bans on keeping loaded firearms in the home.

    None of these laws were rescinded after 2A was written and AS A MATTER OF FACT the anti-gun laws INCREASED after 2A was written and have done so to this very day.

    Maryland should have realized that even it THEY did not have any gun bans in Colonial America plenty of other states DID HAVE them in regards to carrying them as well as having other restrictions on them.

    Maryland will also have the option of rewriting the law and making it so difficult and expensive to get an assault rifle that the average person will not want to go through the red tape and expense to get one.

    And remember if Bruen was worth a tinkers damn Reagans machine gun ban would be illegal to. Fat chance that will ever be rescinded.

    • dacian, the DUNDERHEAD, All those ‘anti-gun laws” you claim that Colonial America had don’t mean anything. You see the 2nd Amendment still holds and we have the Heller, McDonald and Bruen decisions. For a anti-gun law to be voided, a case has to be brought in Federal or a State Court. So your point is really moot as, a) those laws whether or not they are still in effect can be challenged in court and b) no one seriously pays much attention to your ramblings.
      What happened in Colonial America is virtually meaningless thanks to Heller, McDonald and Bruen.

    • I agree. The prohibition against machine guns for private ownership is in violation of the Second Amendment. The intent as expressed by the drafters of the Constitution was that the People should be armed to prevent a take-over by the government and should have weaponry equal to that of any Regulars.

  13. Apparently this “attorney general” doesn’t know the difference between a knife and a firearm. Knives are not protected by the 2nd Amendment.

    • Although there are still some who disagree, there have been many court decisions recognizing that knives are arms and protected by the 2nd Amendment and very few to the contrary.

      • The purpose of the 2nd Amendment was to preserve people’s right to a FIREARM.
        Show me where a knife was considered as covered by the 2nd Amendment? A knife is considered an “arm” but not a firearm.

        • And the Second Amendment states that the right of the People to keep and bear ARMS shall not be infringed. It did not limit itself to FIREARMS. Thus the right included knives, swords, mortars, cannon, etc etc.

        • . Show me where a knife was considered as covered by the 2nd Amendment? A knife is considered an “arm”

          Show US where a knife is NOT considered to be covered by the 2nd Amendment, just read it again to be sure it had not changed, and it still reads “keep and bear ARMS” (not keep and bear FIREARMS) at least in my edition. In your OWN words a knife is an “arm”.

        • Mark N if you review the thoughts of the Founding Fathers contained in the Federalist Papers you will see that knives were not intended to be included in the 2nd A.

          MADDMAXX, I refer you to the Founding Fathers writings specifically the Federalist Papers.

        • I just did further research and find I was WRONG. A knife is considered an arm under the 2nd.
          Is a knife considered an arm?
          Knives are clearly among the “arms” which are protected by the Second Amendment. Under the Supreme Court’s standard in District of Columbia v. Heller, knives are Second Amendment “arms” because they are “typically possessed by law-abiding citizens for lawful purposes,” including self-defense.

        • A firearm is a sub-classification of arms.

          Knives, a stone to hurl, a club, a sword, and a baseball bat are just a few examples of other arms.

          There is no limit as to what can be ‘arms’, other than the limits of human ingenuity…

        • A well-regulated Militia being necessary to the security of a free state, the right of the people to keep and bear ARMS shall not be infringed.
          It was in a 1788 speech that Tench Coxe, a Pennsylvania delegate to the Continental Congress, asked and then said the following: “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom? Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American . . . .”
          Anything that can be used as a weapon is an arm…

  14. Doug Ritter (article author): “…when the U.S. Supreme Court recently issued its Bruen decision upholding the right to carry firearms and setting strict scrutiny as the test…”

    I respectfully disagree. In the Bruen decision, Justice Thomas scrapped the whole concept of scrutiny and wrote, “…the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

    That is NOT strict scrutiny. Whether the government has any sort of “compelling interest” in enacting arms control laws is irrelevant to the issue.

  16. Who’s to say that knife ban wouldn’t have been unconstitutional? Lots of laws are enacted and if they are never challenged, they stand. If someone does have standing and has the money to take on the gubermint, many of these idiotic laws fall as being unconstitutional.

    The AG relying on a knife ban from way back when is certainly indicative of sheer desperation. They know there are on very very thin ice when it comes to saving their precious ban.

  19. Strict Scrutiny is not the test in Bruen as stated in the article. Bruen “established” the plain text of the right to keep and bear arms controls. As informed by history and tradition, Bruen bars the two step analysis where “public safety” was weighed against the right of the people to keep and bear arms. Regulations (on arms) must have an historical traditional analog to be upheld.

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