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Statute prohibiting switchblades doesn’t apply to possession by a person at home

State v. Cory S. Herrmann, 2015 WI App 97; case activity (including briefs)

In light of the Second Amendment decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), Wisconsin’s prohibition on the possession of a switchblade knife, § 941.24(1), is unconstitutional as applied to a person who possesses a switchblade in his or her own home.

Herrmann injured himself with his switchblade in his home, so a friend called 911. The officers responding to the call seized the knife and charged Herrmann with violating § 941.24(1). (¶2). He moved to dismiss on the grounds the statute is invalid under the Second Amendment, both facially and as applied to him. (¶3). The court of appeals agrees the statute can’t be applied to Herrmann’s possession of the knife while in his home.

Heller and McDonald created a two-step approach to Second Amendment challenges. Step one asks whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment. The State doesn’t dispute that Herrmann’s possession of a switchblade falls within the scope of the Second Amendment, and the court agrees. Accordingly, the court moves to the second step, which inquires into “the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights.” Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011). (¶9).

The parties dispute whether step two requires an application of strict scrutiny or intermediate scrutiny in this case, but the court of appeals doesn’t decide the question because even under intermediate scrutiny the State has failed to met its burden that § 941.24(1) is constitutional as applied to Herrmann:

¶12     …. The State argues Wis. Stat. § 941.24(1) serves an important governmental objective—namely, protecting the public from the danger of potentially lethal surprise attacks posed by individuals using switchblade knives. However, the State cites no evidence to establish that this danger actually exists to any significant degree. Again, the State has the burden to establish that § 941.24(1) satisfies intermediate scrutiny, and it must do so by showing the existence of real, not merely conjectural, harm. See Turner Broad. Sys.[, Inc. v. F.C.C.], 512 U.S. [622,] 664 [(1994)]. Thus, on the record before us, we are not convinced that § 941.24(1) serves an important governmental objective.

¶13     Moreover, as applied to Herrmann, Wis. Stat. § 941.24(1) is not substantially related to the State’s cited objective of protecting the public from surprise attacks. It is undisputed that Herrmann possessed his switchblade in his own home for his protection. The threat to the public of a surprise attack by a person possessing a switchblade in his or her own residence for the purpose of self-defense is negligible. Consequently, while banning possession of switchblades in other settings might be substantially related to the State’s cited objective of protecting the public from surprise attacks, prohibiting individuals from possessing switchblades in their own homes for their own protection is not.

¶14     In addition, we observe that the State’s total ban on the possession of switchblades significantly burdens Herrmann’s right to bear arms. The United States Supreme Court made it clear in Heller that the right to bear arms in self-defense is “central to the Second Amendment right[,]” and “the need for defense of self, family, and property is most acute” in the home. Heller, 554 U.S. at 628. Similarly, the Wisconsin Supreme Court has stated that “a citizen’s desire to exercise the right to keep and bear arms for purposes of security is at its apex when undertaken to secure one’s own home or privately owned business.” State v. Hamdan, 2003 WI 113, ¶67, 264 Wis. 2d 433, 665 N.W.2d 785. Here, the effect of Wis. Stat. § 941.24(1) is to prohibit Herrmann from using an entire class of arms protected by the Second Amendment in his own home for his protection. This significantly restricts Herrmann’s core Second Amendment right to bear arms in self-defense.

A narrow but very significant holding. Though it doesn’t settle the appropriate level of scrutiny—which Heller itself left unresolved, except to say rational basis isn’t enough, 554 U.S. at 628 n. 27—the court does helpfully emphasize that the State bears the burden of justifying restrictions on Second Amendment rights: “Notably, a law challenged on Second Amendment grounds is not presumed constitutional, see Ezell, 651 F.3d at 706 (citing Heller, 554 U.S. at 628 n.27), and the burden is on the government to establish the law’s constitutionality,…” (¶11). If you’re litigating a Second Amendment issue and fighting with the State over the level of scrutiny, we recommend you consult Herrmann’s briefs in this case, particularly his reply to the AG. (All briefs are available here).

While the court doesn’t decide Herrmann’s facial challenge, and suggests banning possession of switchblades in settings other than the home might pass muster (¶13), its reasoning all but says that § 941.24(1) can’t stand. The State claims the statute’s purpose is to protect against possibly lethal surprise attacks, but, the court says, it “cites no evidence to establish that the danger actually exists to any significant degree.” (¶12). The court also accepts Herrmann’s argument that knives pose far less of threat than guns. (¶16). If the statute’s public protection purpose doesn’t even serve the important governmental objective required by intermediate scrutiny (¶11), it can’t satisfy the compelling state interest demanded by strict scrutiny, State v. Baron, 2009 WI 58, 45, 318 Wis. 2d 60, 769 N.W.2d 34.

Finally, the court doesn’t address how a person can buy a switchblade and transport it home with the statute’s broad prohibition still intact. As another court has held, however, “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,” State v. DeCiccio, 105 A.3d 165, 207 (Conn. 2014), and buying and transporting the knife are surely “activities necessary to enable possession in the home.” Even under Hamdan‘s now-invalid pre-Heller balancing test, the exercise of core Second Amendment rights might provide a “constitutional defense” to an otherwise valid regulation of the right. 264 Wis. 2d 433, ¶86. Of course, § 941.24(1)’s burdening of “activities necessary to enable possession in the home” is one more reason why it should ultimately be struck down on its face, and not just as applied.

UPDATE (1/4/16): The Volokh Conspiracy has a post about a recent Washingon Supreme Court decision holding some knives aren’t constitutionally protected “arms.” The knife in question in that case was a paring knife.

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{ 3 comments… add one }
  • Peter Heyne November 25, 2015, 9:31 am

    ¶ 16 n.8, citing a 2012 Michigan case, also suggests that the 2nd Amendment can also protect other currently proscribed weapons like Tasers and stun guns. So challenge Wis. Stat. § 941.295. Possession of electric weapon!

    But given Heller and Pocian (2012 WI App 58)’s clear language upholding strict weapon prohibitions for felons (even non-violent felons), Wis. Stat. § 941.26(4)(L) (possession of pepper spray by a convicted felon) will certainly stand.

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