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Today is the first day of the 2022 World Cup, held in Qatar. Yesterday, FIFA President Gianni Infantino defended his organization's decision to award Qatar the right to host this event. Responding to critics who point out that Qatar is a repressive authoritarian state, Infantino avowed that "Today I feel Qatari. Today I feel Arabic. Today I feel African. Today I feel gay. Today I feel disabled." His assurances of solidarity with gay people might be more credible if FIFA hadn't awarded its premier event to a state where gay sex is a crime, punishable by a sentence of up to seven years in prison. Qatar also severely restricts freedom of speech and expression, including enforcing "chilling" restrictions on foreign media organizations covering the Cup.

The issue of migrant workers' rights is, I think, more complicated than sometimes depicted. Nonetheless, it is clearly unjust that the government makes it difficult or impossible for workers to quit their jobs and switch employers (albeit it has to be admitted that similar flaws also exist in some US work-visa programs).

The best that can be said for Qatar's human rights record is that it it probably isn't as bad as that of the host of the last World Cup: Vladimir Putin's Russia. Like the world's other great international sports event - the Olympics - the World Cup is all too often a propaganda showcase for repressive regimes, and also a cause of human rights violations of its own, such as the forcible displacement of large numbers of people to build stadiums. And, as with the Olympics, the World Cup often ends up with awful authoritarian host countries because of corruption in the international body that makes hosting decisions (in this case FIFA). That's what happened in the cases of both Russia and Qatar.

But it doesn't have to be that way. Earlier this year, in the wake of the awful Beijing winter games, I outlined a series of reform proposals for the Olympics. Most are applicable - with minor modifications - to the World Cup, as well. Here they are, with a few modifications, relevant to the World Cup.

1. No public subsidies. Let the games be funded purely by private organizations and sponsors, as was largely the case for the successful 1984 Olympics in Los Angeles. That way, no one has to pay for the games, except those who profit from them and the audience that voluntarily chooses to watch.

2. No forcible displacement of residents, private businesses, or civil society organizations. We can and should hold sports events without kicking innocent people out of their homes.

3. No hosting rights for authoritarian human rights violators. There are plenty of possible Olympic venues that aren't controlled by likes of Vladimir Putin and Xi Jinping, or the Emir of Qatar. Denying these types of rulers hosting rights won't fundamentally alter their regimes. But it will at least damage their image and deny them propaganda victories.

4. There must be full freedom of speech at all competition venues and in all interactions between competitors, media, and the local population. At the very least, athletes, journalists, and spectators should be entirely free to criticize the host government and its policies (or any other government for that matter).

5. There must be no "public health" measures blocking normal human interaction between athletes, members of the media, and residents of the host city. Such measures defeat the whole point of having the competition in a particular country in the first place. If the Games or the Cup are to be held in a "bubble," that can be done almost anywhere. Moreover, scientific evidence increasingly shows that lockdowns and other similar restrictions on freedom of movement do little to stop the spread of Covid, while causing enormous harm. But if a city really is somehow too disease-ridden to allow normal human interaction, it is also too disease-ridden to host major international sports events. In fairness, this point was largely inspired by the draconian Covid restrictions in China, and may have relatively little relevance to other countries.

It is blatantly obvious that a deeply corrupt organization like FIFA will never accept such constraints of its own accord. The same goes for the International Olympic Committee. But they can be pressured into doing the right thing. The strategy I outlined for how to do this with the Olympics is also applicable for the World Cup:

[T]he United States and other liberal democracies can easily force through these reforms simply by making them a condition of future participation in the games. Without the participation of the US and its allies, IOC revenue would plummet, as the value of broadcast rights massively declines.

The question is whether the US and other Western governments have the political will to do what needs to be done….

The US and other democracies can make these demands more credible by threatening to host alternative Winter and Summer games of their own. This would undermine the objection that boycotts unfairly deprive athletes of the opportunity to compete at the highest level. I suggested a similar strategy to force the IOC to move the 2022 games out of Beijing.

Due to the relatively low popularity of soccer here, the US is a far less important source of TV revenue for the World Cup than the Olympic. But liberal democracies nonetheless still account for the lion's share of FIFA's income from the event. They also have a large majority of the world's top national teams. And, as with the Olympics, western nations can credibly threaten to hold an alternative competition should FIFA refuse to comply.

In sum, liberal democracies have all the leverage they need to permanently do away with the dark side of the World Cup, as well as that of the Olympics. All we need is the political will to use it.

I am far from optimistic that it will be generated anytime soon. But, over time, widespread condemnation of travesties like the Beijing Olympics and the last three World Cups (Russia, Qatar, and the 2014 Cup in Brazil, which featured forcible displacement of thousands of people) might generate momentum for reform.

We've set up an account on Mastodon (to supplement our Twitter account, not to replace it)—please follow us there, @VolokhC@liberdon.com. It should be set up (using moa.party) to automatically post all our Volokh Conspiracy posts; I've tested that using a link to a sandbox account of mine, but I suppose this post is the real test.

Liberdon's content limitations seem relatively modest, as these things go, and I understand them to be warnings about what will get people banned (a risk I'm willing to run) rather than promises on my part not to engage in certain speech. I also hope that the site operators interpret those guidelines sensibly, for instance recognizing that quoting slurs from court cases, such as noting that Snyder v. Phelps involved "God Hates Fags" signs, isn't covered by the prohibition on "ethnic/racial/homophobic slurs"), though of course that's up to them. I'd still at some point like to set up my own server, just so I'd have complete control over what we post (recognizing that others may choose, if they prefer, to block our server as a result); but for now, this seems like a good way to experiment.

Thanks to Gary McGath @GaryM03062 for pointing us to liberdon, and to commenter Shawn Levasseur for recommending moa.party.

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Bowie knives are back in constitutional law news these days, after a very long absence. The U.S. Supreme Court's Bruen decision instructs lower courts to look to U.S. legal history to see what sorts of restrictions on Second Amendment rights are consistent with the mainstream American legal tradition. According to the Court, the legal history of the Founding Era is the most important, the late nineteenth century much less so, and the twentieth century too late to create a tradition that contradicts the text of the Second Amendment.

Post-Bruen, some gun control advocates have been looking to Bowie knife laws as analogical justifications for bans on common modern rifles and magazines. In a separate post, Bowie knife statutes 1837-1899, I provide a state-by-state survey of all state Bowie knife laws through 1899. This post examines constitutional case law on Bowie knives, the history of such knives, and the history of pre-1900 bans on types of firearms.

As described below, valid pre-1900 precedents on firearms prohibitions are non-existent. Bruen suggests that "dramatic technological changes may require a more nuanced approach" in drawing historical analogies to justify modern arms controls. Accordingly, there has been renewed interest in Bowie knives, which are said to be a new technology that appeared in the early 19th century. In the Fourth Circuit, Maryland Attorney General Frosh is defending a Maryland ban on many common rifles. In his recently-filed supplemental brief in Bianchi v. Frosh, Bowie knife laws are an important part of his argument, including with a citation to my article Knives and the Second Amendment, 47 U. Michigan J. of Law Reform 175 (2013) (with Clayton Cramer and Joseph Olson).

At a previous stage in the case, I coauthored an amicus brief in support of the plaintiffs' cert. petition, Bianchi v. Frosh. No. 21-902. The brief was on behalf of Professors of Second Amendment Law (including VC's Randy Barnett), Cato Institute, John Locke Foundation, Center to Keep and Bear Arms (Mountain States Legal Foundation), and Independence Institute. The week after Bruen, the Supreme Court granted cert., vacated the decision below (the Fourth Circuit upholding the ban), and remanded for consideration in light of Bruen.

This post proceeds as follows:

Part I summarizes Bruen's rules for reasoning from historical analogies.
Part II summarizes the pre-1900 American history of firearms bans. Four states enacted some sort of prohibitory law on particular types of firearms.
Part III explains Bowie knives, and the infamous 1837 murder on the floor of the Arkansas legislature that may have spurred legislative action in several states.
Part IV examines the three major state supreme court cases involving Bowie knives:
- In Georgia, Nunn v. State (1844) held that a statute banning Bowie knives and handguns violated the Second Amendment.
- In Tennessee, Aymette v. State (1840) upheld a ban on concealed carry of Bowie knives as not violating the state constitution. The court stated that the right to keep arms was individual, but the right to bear arms was only for military service, such as the militia. Mistakenly, the court said that a Bowie knife would be of no use to a militia. To the contrary, many militias used Bowie knives, before and after 1840.
- Cockrum v. State (1859) applied the Texas Constitution and the Second Amendment and stated, "The right to carry a bowie-knife for lawful defense is secured, and must be admitted." However, enhanced sentencing for use of a Bowie knife in murder was constitutional.

The other post, Bowie knife statutes 1837-1899, excerpts and analyzes state 19th-century Bowie knife statutes. With very rare exceptions, states that chose to regulate Bowie knives treated them the same as other, older, types of fighting knives, namely dirks and/or daggers. As described in this post, "Bowie knives" were briefly considered to be a new type of arm, but they were not. Bowie knife laws turned into general laws about large knives, and so in statutes, "Bowie knife" was joined by other well-known fighting knives.

The knife category of Bowie knives plus dirks and/or daggers was frequently regulated at the same level as handguns. That is, prohibitions were rarities. The mainstream approach for handguns and knives was non-prohibitory for peaceable adults, such as laws forbidding concealed carry (while allowing open carry), prohibiting sales to minors, or specially punishing misuse.

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 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 was typical for handgun control.

This post describes and analyzes nineteenth century state statutes on Bowie knives. It is a companion to my post The legal history of bans on firearms and Bowie knives before 1900, which described case law.

As detailed in that article, the term "Bowie knife" because popular for knife marketing in America and Great Britain after Jim Bowie used a traditional knife at a famous "sandbar fight" on the lower Mississippi River in 1827. Statutes specifically regulating the "Bowie knife" began with Mississippi in 1837, and continued for the rest of the century.

Among the 220 state or territorial statutes with the words "Bowie knife" or "Bowie knives" only 5 were just about Bowie knives (along with their close relative, the Arkansas toothpick). Almost always, Bowie knives were regulated the same as other well-known knives that were well-suited for fighting against humans and animals--namely "dirks" or "daggers." That same regulatory category frequently also included "sword-canes." About 98% of statutes on "Bowie knives" treated them the same as other blade arms. Bowie knives did not set any precedent for a uniquely high level of control. They were regulated the same as a butcher's knife.

Bowie knives and many others were often regulated like handguns. Both types of arms are concealable, effective for defense, and easy to misuse for offense.

For Bowie knives, handguns, and other arms, a few states prohibited sales. The very large majority, however, respected the right to keep and bear arms, including Bowie knives. These states allowed open carry while some of them forbade concealed carry. In the 19th century, legislatures tended to prefer that people carry openly; today, legislatures tend to favor concealed carry. Based on history and precedent, legislatures may regulate the mode of carry, as the the U.S. Supreme Court affirmed in New York State Rifle and Pistol Association v. Bruen, 142 S. Ct. 2111 (2022).

Besides regulating the mode of carry, many states restricted sales to minors. They also enacted special laws against misuse of arms.

Of the 220 state or territorial statutes cited in this post, 114 come from just 5 states: Mississippi, Alabama, Georgia, Virginia, and North Carolina. This is partly because these were the only states whose personal property tax statutes specifically included "Bowie knife" in their lists of taxable arms, along with other knives, such as "dirks."

Glossary

Bowie knife. This was marketing and newspaper term for old or new knives suitable for fighting, hunting, and utility. There was no common feature that distinguished a "Bowie knife" from older knives. For example, a "Bowie knife" could have a blade sharpened on only one edge, or on two edges. It could be straight or curved. It might or might not have a handguard. There was no particular length. The legal history of bans on firearms and Bowie knives before 1900.

Arkansas toothpick. A loose term for some Bowie knives popular in Arkansas. The legal history of bans on firearms and Bowie knives before 1900.

Dagger. A straight knife with two cutting edges and a handguard.

Dirk. Originally, a Scottish fighting knife with one cutting edge. Harold L. Peterson, Daggers & Fighting Knives of the Western World 60 (1968). According to a Nov. 19, 2022, email to me from Mark Zalesky, publisher of Knife Magazine, "Dirks in America were small stabbing weapons, usually small daggers but sometimes single edged." Many 19th century laws forbade concealed carry of "dirks" and/or "daggers." The statutory formula of "bowie knife + (dirk and/or dagger)" covered fixed-blade knives well-suited for defense or offense. The category does not include pocket knives.

Sword-cane. A sword concealed in a walking stick. Necessarily with a slender blade.

Slungshot. A slungshot is a rope looped on both ends, with a lead weight or other small, dense item at one end. It helps sailors accurately cast mooring lines and other ropes. A slungshot rope that is shortened to forearm length and spun rapidly is an effective blunt force weapon.

Colt. Similar to a slungshot. 1 Shorter Oxford English Dictionary 444 ("4. A short piece of weighted rope used as a weapon").

Knucks, knuckles. Linked rings or a bar, often made of metal, with finger holes. They make the fist a more potent weapon.

Revolver. A handgun in which the ammunition is held in a rotating cylinder.

Pistol. Often a generic term for handguns. Sometimes used to indicate non-revolvers, as in a law covering "pistols or revolvers."

Methodology

I started with the Appendix to Clayton E. Cramer, Concealed Weapon Laws of Early Republic: Dueling, Southern Violence, and Moral Reform (1999), plus the Appendix to Maryland Attorney General Brian Frosh's Fourth Circuit supplemental brief in Bianchi v. Frosh. The brief argues that 19th century laws about Bowie knives provide a historical analogy to justify the Maryland legislature's ban on many common modern rifles.

Then I searched the HeinOnline Sessions Law Library for occurrences of "bowie" within 5 words of "knife." After that, the same search, but with "knives." In some state databases, I searched for "bowie." Finally, I read the Declaration of Robert Spitzer, which is Exhibit E of the California Attorney General's Supplemental Brief in Response to the Court's Order of September, 26, 2022, Duncan v. Bonta, No. 17-cv-1017-BEN-JLB (S.D. Cal. Nov. 10, 2022). The case involves a challenge to a California statute to confiscate magazines over 10 rounds.

Reviewing the Spitzter Declaration led to finding three laws I had missed: an 1871 D.C. ordinance, an 1893 Rhode Island statute, and another enactment of a Montana anti-dueling statute. Spitzer also lists 16 municipal ordinances about Bowie knives in the 19th century, which are summarized below, after the state-by-state presentation.

Citations: Some session laws cites below exceed the information required by the Blue Book. I follow the convention of calling each separate enactment in annual session laws a "chapter." That is, "chap. 68" was the 68th law enacted by the state legislature that year. The official state session laws sometimes use other words, such as "Act 68" or "No. 68." Not all session laws provide a number for the bills enacted in a given session.

This post is part of a law review article I am writing, so it has not been cite-checked by journal editors; citations might have typos or similar errors. Nemo sine vitiis est (no one is without faults).

11/20/1910: Justice William Henry Moody retired.

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The legal history of bans on firearms and Bowie knives before 1900

Bowie knife statutes 1837-1899

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