Bringing a Knife to a Gun Fight: 5th Circuit Declares Switchblades Are ‘Arms’ Protected

Are knives—or at least certain types of bladed weapons—presumptively protected by the Second Amendment? 

That’s the question the 5th U.S. Circuit Court of Appeals recently answered in the affirmative. 

This dispute dates all the way back to 1958, when Congress, worried about juvenile delinquency in the aftermath of the then-scandalous movie, “Rebel Without a Cause” (which involved a knife-fighting scene), passed the Federal Switchblade Act of 1958. 

This act prohibits the knowing introduction, manufacture for introduction, transportation, or distribution into interstate commerce of any switchblade knife, which is defined as a knife that opens automatically by pressing a button or applying pressure to the handle or by inertia or gravity or both. Think of a butterfly knife. 

Anyone who violated the act could be fined up to $2,000, imprisoned up to five years, or have both punishments applied. 

Fast forward 66 years after Congress passed the Federal Switchblade Act, and a group of plaintiffs challenged the act’s provisions, arguing that they violate the Second Amendment, which broadly guarantees the right to “keep and bear Arms.”  

While a federal trial court initially dismissed the challenge, the 5th Circuit reversed it and made clear, applying New York State Rifle & Pistol Association, Inc. v. Bruen’s two-step analysis, that “switchblade knives qualify as ‘Arms’ and are covered by the ‘plain text’ of the Second Amendment.” It also made clear that the government, in defending the act, failed to meet its burden of showing that its restrictions comport “with well-established principles of the Second Amendment and its regulatory tradition.” 

The court explained that there is a “wealth of history indicating the founding-era uses of switchblades for defense,” as well as other lawful tasks such as hunting and fishing, and that even with the Federal Switchblade Act in place, “there are ‘millions’ of automatically opening knives in the United States now”—meaning they were in “common use” at the Founding and remain in common use today. 

Interestingly, the court declined to weigh in on the ongoing circuit split over whether “to conduct the ‘in common use’ analysis during step one or two” of the Bruen test because the court said that “whether we address this in-common-use inquiry at step one or step two of Bruen,” the “government loses regardless.” 

The court did, however, uphold the trial court’s dismissal of a challenge to a different section of the act involving government territory and tribal lands because the plaintiffs failed “to establish that … [it] has no lawful applications,” which is “sufficient to determine that their facial challenge fails.” 

This is the latest victory for Second Amendment advocates in which courts have made clear that the “Arms” protected by the Amendment’s guarantee extend beyond firearms and include items such as body armor, silencers, and now many types of knives too. 

And soon, the U.S. Supreme Court will provide even more clarity on what the Second Amendment’s text guaranteeing that the “right of the people to keep and bear Arms, shall not be infringed” means. On Dec. 2, it hears arguments in Viramontes v. Cook County, where it is being asked to decide whether Cook County, Illinois’ ban on AR-15 rifles violates the Second Amendment.    

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