March 2016 Bar Bulletin
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March 2016 Bar Bulletin

Knife Fight at the Supreme Court Corral

By Gene Barton


“That’s not a knife. … That’s a knife!”
—Mick “Crocodile” Dundee1

“When I use a word, it means just what I choose it to mean — neither more nor less.”
—Humpty Dumpty
Lewis Carroll,
(Alice) Through the Looking Glass

“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.”
—U.S. Constitution, Second Amendment

It seems rather peculiar, that — because of the Second Amendment — it can be perfectly legal in Seattle to carry around a concealed, loaded handgun, eminently lethal at close range or at a distance, but — because of a Seattle municipal ordinance — it generally is not legal to carry an “innocuous” concealed kitchen knife, which presents a far less serious threat.

Yet, that was the conclusion of the Washington Supreme Court in a 5–4 decision on December 31, in which the majority opinion penned by Justice Charlie Wiggins held:

We hold that the right to bear arms protects instruments that are designed as weapons traditionally or commonly used by law abiding citizens for the lawful purpose of self-defense. In considering whether a weapon is an arm, we look to the historical origins and use of that weapon, noting that a weapon does not need to be designed for military use to be traditionally or commonly used for self-defense. We will also consider the weapon’s purpose and intended function.

… It is, in fact, this definitional approach that resulted in our holding [in State v. Montana] that fixed-blade paring knives and small kitchen knives are not protected arms under the Washington State Constitution….

… [T]he small knife found on Evans’s person is a utility tool, not a weapon. While almost any common object may be used as a weapon, that does not necessarily mean that possession of otherwise innocuous objects that could be wielded with malice will trigger the constitutional protections afforded to “arms.”2

The decision seems to create a Carrollian dichotomy by which a knife designed for killing is an “arm” protected under the Second Amendment and, thus, can be carried concealed without violating the Seattle ordinance at issue,3 but where a paring knife, designed to cut fruit, is a kitchen utensil and, thus, not an “arm” protected by the Second Amendment, can land you in jail if it’s in your pocket.4

As noted, the decision in Evans grows out of the Court’s 1996 opinion in City of Seattle v. Montana, in which the Court held, “Under even the broadest possible construction, the term ‘arms’ extends only to weapons designed as such, and not to every utensil, instrument, or thing which might be used to strike or injure another person.”5

In Montana, as in Evans, the question before the Court was whether “small, fixed-blade paring knives are not arms under the Washington Constitution,” and the Montana Court held that they were not, which ordinarily would have precluded further review in Evans.6 However, Evans came before the Court based on an argument that the U.S. Supreme Court’s decision in District of Columbia v. Heller7 had changed the discussion.

In Heller, a 5-4 Court held that a Washington, D.C. ordinance essentially banning private possession of handguns was unconstitutional under the Second Amendment. As the majority stated: “Evans specifically argues that we must reconsider the parameters of the right to bear arms under the Washington Constitution in light of Heller and the protections afforded by the Second Amendment.”8

The majority opinion surveys and effectively relies on Heller’s historical analysis, but then rejects it as inapplicable under the facts,9 Justice Wiggins wrote that in Heller “the Supreme Court defined the term ‘arms’ to encompass all bearable arms that were common at the time of the founding and that could be used for self-defense.” However, the Supreme Court’s “definition of ‘arms’ still contemplates that an arm is a weapon…. This definition of ‘arms’ under the federal constitution is not unlimited: ‘the Second Amendment right, whatever its nature, extends only to certain types of weapons.’ Specifically, the Second Amendment ‘does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.’”10

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