New York's Law Prohibiting Gravity Knives and other Per-se Weapons
May Be Unconstitutional
By Lance Fletcher, New York City Defense Attorney
An important new U.S. Supreme Court decision may have far reaching consequences. In
Caetano v. Massachusetts,577 U.S. (2016) decided March 21, 2016, the U.S. Supreme Court took a look at a recent
decision by the highest court in Massachusetts, the Massachusetts Supreme
Judicial Court. In it, Massachusetts upheld the conviction of Caetano
for illegally possessing a stun gun. Justice Alito wrote the decision
reversing the conviction of a woman (Caetano) who armed herself with a
stun gun to protect herself from an abusive ex-boyfriend.
Caetano had a restraining order against her ex-boyfriend and father of
her children. Late one night, he confronted her when she was alone. He
was a foot taller and over 100 pounds heavier than Caetano and screamed
obscenities at her in a threatening manner. Frightened for her life, Caetano
pulled out a stun gun and warned him “I don’t wanna have to
use it on you but if you don’t leave me alone I’m gonna have
to.” He got scared and ran away.
Caetano was later found in possession of the stun gun during an unrelated
search and arrested. She went to trial and was convicted for violating
a Massachusetts law which banned “the possession of an electrical
weapon."
The U.S. Supreme Court noted that Massachusetts reached their conclusion
about the illegality of a stun gun because they deemed it to be an "unusual"
weapon because it wasn't something in use at the time the
Second Amendment was enacted. The Court, relying on a prior decision in
District of Columbia v. Heller, 554 U.S. 570 (2008), said that Massachusetts used an improper test because
weapons invented since 1789 are not necessarily "unusual." Next,
the Court disagreed with Massachusetts's reasoning that if the military
doesn't use the weapon, it should be illegal.
Clear 2nd Amendment Test. In
Caetano, the Court made it clear that a weapon can't be banned unless it is
both (1) dangerous and (2) unusual and that being a relatively modern
device does not make it "unusual". The Court held that best
way to look at whether the weapon is permissible is to ask yourself whether
it is commonly possessed by law-abiding citizens for lawful purposes today. In
Caetano, the Court noted that stun guns, while less popular than handguns, are
widely owned and accepted as a legitimate means of self-defense across
the country. Therefore, possessing a stun gun (and presumably weapons
like it) should be protected by the
Second Amendment.
The Court, taking a shot at other states with similarly improper laws,
said that a state cannot simply ban all weapons that are "designed
and constructed to produce death or great bodily harm" and "for
the purpose of bodily assault or defense." So, the relative dangerousness
of the weapon is irrelevant. Applying some common sense, the Court acknowledged
that weapons are inherently dangerous because that's what they are
designed to be. The Court concluded that "if the fundamental right
of self-defense does not protect Caetano, then the safety of all Americans
is left to the mercy of the state authorities who may be more concerned
about disarming the people than about keeping them safe."
New York Gravity knifes, switchblades, stun guns. As a New York City criminal defense attorney, I am often asked about the
legality of three popular non-firearm weapons.
Gravity knives, switchblades, and stun guns. A
gravity knife is any knife which has a blade which is released from the handle by the
force of gravity or the application of centrifugal force which, when released,
is locked in place. A
switchblade knife means any knife which has a blade which opens automatically by hand pressure
applied to a button, spring, or other device in the handle. A
stun gun means any device designed primarily as a weapon, the purpose of which
is to stun, cause mental disorientation, knock out or paralyze a person
by passing a high voltage electrical shock to them. In New York, Penal
Law 265.01 prohibits possessing certain types of weapons under certain
circumstances. Common weapons prohibited under 265.01 include
- Electronic stun gun, gravity knife, switchblade knife, metal knuckles,
imitation pistol, and other items (several other items, even "Kung
Fu" stars, are prohibited)
After
Caetano, how can New York's section 265.01 be upheld? There are several problems with it after
Caetano. First, New York's law categorically bans stun guns which
Caetano says cannot be done. Second, New York's law goes further and categorically
bans other non-firearm weapons such as gravity and switchblade knives.
The test in
Caetano applied to gravity knives / switchblades would ask (1) is it dangerous
AND (2) unusual. The answer to the first part of this would probably be
"yes" but how could a gravity knife be considered unusual especially
when there are accounts of paratroopers using them in World War 2? Additionally,
why would the manner in which a knife is unfolded make it unusual? Wouldn't
the issue be whether knives, generally, are unusual and not the manner
in which they unfold? In
Caetano, the Court rejected that stun guns are unusual simply because they are
novel in that they use electricity or are a relatively modern invention.
For policy reasons, knives, whether opened with centrifugal force or a
spring, should be viewed as a better option than arming yourself with
a firearm. It seems likely that in the aftermath of
Caetano, the Second Amendment will be seen as protecting possession of stun guns,
gravity knifes, and switchblades in New York.