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Second Amendment protects dirk knives and police batons


An Oakland Police Department officer (R) approaches as plainclothes California Highway Patrol detectives makes an arrest in Oakland, California December 10, 2014. Chief Avery Browne, commander of the California Highway Patrol's Golden Gate Division, said two plainclothes CHP detectives were surrounded by up to 50 demonstrators who ignored orders to back off, despite one of the officers first taking out his baton and identifying himself as police. Picture taken December 10, 2014. REUTERS/Noah Berger (UNITED STATES - Tags: CIVIL UNREST CRIME LAW) ATTENTION EDITORS: PICTURE 10 OF 10 PICTURES FOR A PICTURE AND ITS STORY PACKAGE 'DETECTIVE'S GUN DRAWN IN OAKLAND' SEARCH 'OAKLAND GUN' FOR ALL IMAGES
An Oakland Police Department officer (right) approaches as plainclothes California Highway Patrol detectives make an arrest in Oakland, Calif., Dec. 10, 2014. (Noah Berger/Reuters)

So holds the Connecticut Supreme Court, in the just-released State v. DeCiccio. Here's an excerpt of the reasoning as to police batons, which also applies in large measure to dirks, and which, I would argue, should apply to stun guns and Tasers (paragraph break added). (Disclosure: I represent the Association of Women Against Rape and Endangerment, as amicus curiae, in Commonwealth v. Caetano, now pending before the Massachusetts high court; that cases involves the question whether stun guns and Tasers are "arms" for Second Amendment purposes; we argue that they are.)

This widespread acceptance of batons within the law enforcement community also supports the conclusion that they are not so dangerous or unusual as to fall outside the purview of the second amendment. To this end, the fact that police batons are inherently less lethal, and therefore less dangerous and less intrinsically harmful, than handguns, which clearly constitute "arms" within the meaning of the second amendment, provides further reason to conclude that they are entitled to constitutional protection. Cf. People v. Yanna, supra, 297 Mich. App. 145 ("[T]he prosecution also argues that Tasers and stun guns are so dangerous that they are not protected by the [s]econd [a]mendment. However, it is difficult to see how this is so since Heller concluded that handguns are not sufficiently dangerous to be banned. Tasers and stun guns, while plainly dangerous, are substantially less dangerous than handguns. Therefore, [T]asers and stun guns do not constitute dangerous weapons for purposes of [s]econd [a]mendment inquiries."); D. Kopel et al., supra, 47 U. Mich. J.L. Reform 184 ("[K]nives are far less dangerous than guns. Any public safety justification for knife regulation is necessarily less persuasive than the public safety justification for firearms regulation.").

Indeed, expandable batons are intermediate force devices that, when used as intended, are unlikely to cause death or permanent bodily injury. For these reasons, we are persuaded that the police baton that the defendant had in his vehicle is the kind of weapon traditionally used by the state for public safety purposes and is neither so dangerous nor so unusual as to fall outside the purview of the second amendment's right to keep and bear arms.

The court also holds that the total ban on transporting such weapons in a vehicle violates the Second Amendment (some paragraph breaks added):

[T]he prohibition against transporting a dirk knife and a police baton to a new home constitutes a significant restriction on the right to possess those weapons in that new home. Indeed, aside from an outright ban on possessing those weapons, it is difficult to conceive of a greater abridgement of that right than a restriction that bars the use of a vehicle to transport either of those weapons from one home to another.

Moreover, under § 29-38, it is unlawful for an ordinary citizen, like the defendant, to transport those weapons from the place of purchase to the purchaser's home. As a consequence, the statute's complete proscription against using a vehicle to transport the two protected weapons deprives their owner of any realistic opportunity either to bring them home after they have been purchased or to move them from one home to another. In fact, at oral argument before this court, the state acknowledged that, in light of that statutory prohibition, there may be no lawful means of doing either….

In light of the nature and extent of the restrictions at issue in the present case, we agree with the state that intermediate scrutiny represents the applicable level of constitutional review. "[A]lthough addressing varied and divergent laws, courts throughout the country have nearly universally applied some form of intermediate scrutiny in the [s]econd [a]mendment context." … Nevertheless, to establish the requisite substantial relationship between the purpose to be served by the statutory provision and the means employed to achieve that end [under intermediate scrutiny], the explanation that the state proffers in defense of the provision must be "exceedingly persuasive." …

Post-Heller case law supports the commonsense conclusion that the core right to possess a protected weapon in the home for self-defense necessarily entails the right, subject to reasonable regulation, to engage in activities necessary to enable possession in the home. Thus, the safe transportation of weapons protected by the second amendment is an essential corollary of the right to possess them in the home for self-defense when such transportation is necessary to effectuate that right. Conversely, in rejecting second amendment challenges to measures prohibiting the possession of handguns outside the home, courts have deemed it significant that those regulatory schemes contained provisions including, in addition to the right to possess handguns in the home, limited exceptions permitting the transportation of handguns between homes, or between home and dealer or repairer.

We conclude that the state has not provided sufficient reason for extending the ban on transporting dirk knives and police batons to a scenario, like the present one, in which the owner of those weapons uses his vehicle to move them from a former residence to a new one.

The court's holding that the right to bear arms includes non-firearms, such as knives and batons, is consistent with the bulk of modern precedent on the subject; for other cases striking down bans on such weapons, see State v. Griffin, 47 A.3d 487 (Del. 2012) (knives); People v. Yanna, 824 N.W.2d 241 (stun guns and Tasers); 1986 Fla. Op. Att'y Gen. 2 (stun guns and Tasers); State v. Delgado, 692 P.2d 610 (Or. 1984) (switchblades); State v. Blocker, 630 P.2d 824 (Or. 1981) (billy clubs); State v. Kessler, 614 P.2d 94 (Or. 1980) (billy clubs); Barnett v. State, 695 P.2d 991 (Or. Ct. App. 1985) (blackjacks). But see City of Seattle v. Evans (Wash. 2014) (concluding that kitchen knives aren't constitutionally protected, but not deciding about knives more broadly); State v. Swanton, 629 P.2d 98, 98 (Ariz. Ct. App. 1981) (holding that nunchakus are not arms, because "arms" is limited to "such arms as are recognized in civilized warfare and not those used by a ruffian, brawler or assassin").