Right to Keep and Bear Arms Includes Knives

In Delaware, carrying any knife — including a kitchen knife or a paring knife or anything other than a closed folding knife with a blade of 3 inches or shorter — concealed is a felony, even in your home, unless you have a concealed weapons license. 11 Del. Code § 1442 provides,

A person is guilty of carrying a concealed deadly weapon when the person carries concealed a deadly weapon upon or about the person without a license to do so as provided by § 1441 of this title.

And 11 Del. Code § 222(5) defines “deadly weapon” to include “a knife of any sort (other than an ordinary pocketknife carried in a closed position),” with “ordinary pocketknife” being defined as “a folding knife having a blade not more than 3 inches in length.” So, yes, if you pop a steak knife or a paring knife in your pocket in your own home in Delaware, you are (according to the statutes) committing a felony.

William Griffin was using a steak knife to open boxes in his basement, and put the knife in his pocket. The police came because of a domestic dispute, and arrested him for the dispute. After this, they discovered his knife, and he was convicted of resisting arrest, criminal mischief, and felony carrying a concealed deadly weapon.

Monday, the Delaware Supreme Court reversed (State v. Griffin (Del. June 18, 2012)) — the Delaware Constitution’s right to keep and bear arms provision, the court held, generally protects a right to carry concealed weapons, including knives, in the home, so long as they are carried for a lawful purpose. (The court had earlier concluded that the right does not extend to carrying concealed weapons, at least firearms, outside the home.)

The court did conclude that the right might be lost if the police ask the person in his home whether he is carrying a weapon, and he falsely denies this:

We conclude, therefore, that Griffin’s constitutional right to bear arms authorized his carrying a con-cealed knife in his home. But that does not end the inquiry. When the police confronted Griffin at the top of the basement stairs, they asked whether he had a knife. At that point, the balance between his interest in carrying a concealed weapon in his home and the State’s interest in public safety shifted in favor of the State. Griffin was no longer using the knife for household purposes, and his failure to reveal that he was carrying a weapon could have represented a serious threat to both the police and his girlfriend.

And the court therefore reversed the conviction and remanded for a new trial:

Griffin says he told the police that the knife was in his pant leg. The police say he told them the knife was in the basement. If the jury believes Griffin, he cannot be convicted for CCDW [carrying a concealed deadly weapon]. He was entitled to be carrying the concealed knife in his home, and he revealed the knife’s concealed location when asked by the police. Griffin was unable to remove the knife from his pant leg because he was handcuffed, and he did not voluntarily leave his home while carrying the weapon. If, instead, the jury believes the police, then Griffin was subject to prosecution for CCDW. Although he may not have had an unlawful purpose for continuing to conceal the weapon, he no longer had a constitutionally protected right to do so.

At trial, the jury was not instructed to decide whether Griffin was given the opportunity to disclose that he was carrying the knife, and, if so, whether he did so truthfully. Under the specific circumstances of this case, those factual findings will determine whether Griffin can be convicted of CCDW.

This conclusion follows most modern cases that have considered the subject.

State v. Delgado, 692 P.2d 610 (Or. 1984) (striking down a ban on possessing and carrying switchblades); State v. Blocker, 630 P.2d 824 (Or. 1981) (striking down a ban on carrying billy clubs in public); State v. Kessler, 614 P.2d 94 (Or. 1980) (striking down a ban on possession of billy clubs); Barnett v. State, 695 P.2d 991 (Or. Ct. App. 1985) (striking down a ban on possession of blackjack); see also Hill v. State, 53 Ga. 472, 474–75 (1874) (taking the view that “swords” and “bayonets” are protected because they “are recognized in civilized warfare”); Ex parte Thomas, 97 P. 260, 262, 265 (Okla. 1908) (following Hill and finding likewise); City of Akron v. Rasdan, 663 N.E.2d 947 (Ohio Ct. App. 1995) (treating a ban on public carrying of knives as implicating the right to bear arms, though concluding that the ban was a “reasonable regulation” and thus did not violate the constitutional provision); 1986 Fla. Op. Att’y Gen. 2 (concluding that the right to keep and bear arms covers stun guns and Tasers, determining that “the term [‘arms’] is generally defined as ‘anything that a man wears for his defense, or takes in his hands as a weapon’”); City of Seattle v. Montana, 919 P.2d 1218, 1222 (Wash. 1996) (noting the question of whether knives are protected but not reaching it); Concealed Handgun Permits, 1994 Alaska Op. Atty. Gen. (Inf.) 209 (suggesting that the Alaska courts may adopt this position, though not making a definitive prediction). But see 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”); State v. Kerner, 107 S.E. 222, 224 (N.C. 1921) (“[None of a] ‘bowie knife, dirk, dagger, slung-shot, loaded cane, brass, iron or metallic knucks or razor or other deadly weapon of like kind’ . . . except ‘pistol’ can be construed as coming within the meaning of the word ‘arms’ used in the constitutional guaranty of the right to bear arms.”).

Disclosure: I have filed an amicus brief on behalf of Arming Women Against Rape & Endangerment (AWARE) in a Michigan Court of Appeals case that is considering whether stun guns are covered by the right to keep and bear arms; the brief argues that the right to keep and bear arms is indeed not limited to firearms, but also includes stun guns.

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